Posted on 01/18/2005 11:25:23 AM PST by newsgatherer
SCOTUS cannot make spontanious declarations. If no suitable case arises, they cannot rule. If anything, SCOTUS has made noise recently to the effect "we want a good clean RKBA case, but haven't seen one." Silence does not equal complicity.
'No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.'
I'm not surprised it was rejected, being phrased in that form.
The rights do indeed exist
That's a step in the right direction.
If the rights do indeed exist, then why all this talk of "no right to crew-served arms"?
the core premise is "Are they protected? And if so, by who?"
They only need protecting if they are threatened with infringement. Perhaps you confuse protection with infringement.
I have a RKBA right to own a cannon. Having a court declare "you have a right to own a cannon" is only really relevant if someone, most likely the state, says "you can not own a cannon".
"There's a difference."
So you're saying that the state may not infringe your RKBA? Sorry, but that's not the way it works. The state tells you whether or not they'll protect that right and others.
And where does the state get that power? From the people of that state who wrote and approved a state constitution which defines how they will expend their resources protecting your precious rights.
"Again, you presume a right isn't unless it is protected."
I told you before, but you're either not paying attention or you refuse to pay attention. If either of those is true, then why should I continue with you?
Maybe you're the type that needs to have things repeated to them. I'll try once more.
You have certain inalienable rights which, coming from God, may not be taken away. Life, liberty, pursuit of happiness, (some add property).
You have other, fundamental, natural rights which may or may not be protected by the state in which you live. Just because a state does not protect that right doesn't mean you don't have it. If it's that important to you, move to a state that does protect that right.
Say what?
If there is ANYTHING which is unquestionably a weapon of war, it's a cannon.
The 2nd Amendment is about the people having the tools to wage war (militia, security of a free state, and all that). If you don't see the connection between the 2nd Amendment and cannon, what pray tell is the point of the 2nd Amendment? I'm flabbergasted you admit not seeing a connection.
“Or we push the reset button that is protected by the Second amendment and exercise the right and duty indicated by Jefferson in the extract below.”
I do not expect to see any such move so the issue is simply academic. My state is a Socialist workers paradise complete with egregious taxes and rampant poverty. We are on the fast ride straight down the toilet. My response is to move to a free state and regain control of my life. Even here in Maine no one speaks of rebellion. Heck, they can barely stir themselves enough to leave.
Jefferson has a host of quotes that are entertaining. Here are a few that have absolutely zero power in the real, modern world of 2005
“"[The States] alone being parties to the [Federal] compact... [are] solely authorized to judge in the last resort of the powers exercised under it, Congress being not a party but merely the creation of the compact and subject as to its assumptions of power to the final judgment of those by whom and for whose use itself and its powers were all created and modified." --Thomas Jefferson: Draft Kentucky Resolutions, 1798. ME 17:387”
“"I think it important... to set an example against broad construction by appealing for new power to the people. If, however, our friends shall think differently, certainly I shall acquiesce with satisfaction, [confident] that the good sense of our country will correct the evil of construction whenever it shall produce ill effects." --Thomas Jefferson to Wilson Nicholas, 1803. ME 10:420”
“"One precedent in favor of power is stronger than an hundred against it." --Thomas Jefferson: Notes on Virginia Q.XIII, 1782. ME 2:172 “
Of course, this one speaks directly to your quote:
“"On every unauthoritative exercise of power by the legislature must the people rise in rebellion or their silence be construed into a surrender of that power to them? If so, how many rebellions should we have had already?" --Thomas Jefferson: Notes on Virginia Q.XIII, 1782. ME 2:171 “
They are property. Because they are property, they may not be removed or restricted without due process.
If a law in your state restricting or removing arms violates due process of your state constitution, you may certainly take that to state court.
The federal court, however, would not be involved.
You keep talking about states protecting rights. Protect from whom? the state? X will protect me from X? WTF? If the state will not infringe my right, then I'm not particularly concerned about the state protecting that right from the state infringing that right.
The 2nd Amendment tells the federal government very explicitly "you do NOT have the power to infringe this right" - emphasizing the fact that the federal gov't was never given such a power. By what source does a state have a power to infringe RKBA?
"I really believe that they could not pull it off. There will be a massive Constitutional crisis if it is ever attempted.
I wish I could agree, but I've read the CFR decision, it's really bad both consituttionally and logically, but there has been no Constitutional crisis, no uprising, not even a serious "throw the bums out" movement. The bums would include pretty much the Congress, the President, and the Supreme Court in this particular case. The first passed it, the second signed it when he could have vetoed it, the third said it was peachy keen and did not violate the Constitution. (They seemingly ingnored the first amendment almost entirely)."
What El Gato said...in spades.
Even though RKBA is protected here in Texas.
I'm still waiting for one instance of a State over-riding a power delegated to the Fed Gov via the Constitution. I'm hearing a lot of crickets, but that is about it....
Here's the point, Jimbo. The courts haven't ruled, the second amendment is not incorporated, and gun ownership in a state is defined by the state constitution, not the U.S. Constitution.
Excuse me, but I just get a little frustrated with people like you who equivocate with words like "if" and " was meant to", rather than coming right out and admitting that the 14th amendment does not incorporate, and has never incorporated, the entire BOR.
As I said before, yes you do. Why are you phrasing it that way? Why aren't you simply saying, "I have a right to own a cannon"?.
"Having a court declare "you have a right to own a cannon"
Whoa! What court? A state court? Well, a state court would say that only if the state constitution says that. And it may. But there may be some stipulations attached (cannot be fired, must have a license, maximum size, etc.) Why are you even in court?
"is only really relevant if someone, most likely the state, says "you can not own a cannon"."
It would be the state constitution that says "you cannot own a cannon", or in other words, "this state does not protect your right to own a cannon".
If you can get enough people who feel the way you do, you can change your state constitution to make that possible. Cool, huh?
"By simply declaring "no WMDs", you join the VPC reasoning that leads to "no battleships", "no A10 Warthog", "no M1 Abrams", "no M2 Ma Deuce", "no M82A2 Barrett", "no .338", "no .308", "no .223", "no .22", "no slingshots". How do you draw a line? seriously, we've been begging you and Jim and justshutupandtakeit to explain: without the anti-big-stuff hysteria, and knowing that even the M4 is banned now, how do you seriously propose drawing a line? the Founding Fathers didn't - how will you? and why?"
But you see, that is where we disagree. The founders DID draw such a line. They drew it in their debate and in the laws they wrote. You just do not like the line drawn so you ignore it.
They wrote of muskets, swords, etc and drafted specific laws about such things in reference to the Secons Amendment but they did no such a thing about Cannon.
Just about any aerosol can (with flamable propellent) and a BIC lighter can give you one of those.
They wrote of muskets, swords, etc and drafted specific laws about such things in reference to the Secons Amendment but they did no such a thing about Cannon.
Quote please. The only one I've been able to find that mentions anything other than "arms" mentions "and all the terrible implemtns of the soldier". Not too mention "destructive devices" like fully armed battleships.
Jonestown, there is a difference between "individual intent" and an unrestrained right to own anything that might be classified as an "arm".
So say you, your friends here, and the governments intent on restraining our rights to keep/bear arms. -- Re-read Roland, who explains well our unrestrained rights to property, -- in his essay you claimed to agree with.
I can find no indication that the founders ever intended this broad definition of arms. I can find specific reference to small arms. The Militia Act and the debates surrounding that speak of military small arms. There is no record of court cases supporting any other right than a right to small arms and the legal record is further limited to a right to specific types of small arms.
The government is only constrained, in reality, from doing things prohibited by the Constitution (yes I know that was the not the idea at the time but that is what has happened).
You admit you know better, yet you condone, "in reality" unconstitutional prohibitions.
Are you an officer of the court? If so, for shame.
Now consider we have had a court tell us that Congress CAN regulate free political speech, flat against the clear word and intent of the founders. Do you really believe the courts could not or will not gut the 2nd if they thought it was in their interests?
I really believe that they could not pull it off. There will be a massive Constitutional crisis if it is ever attempted.
I write of two things...what the Constitution really says, in my view, and the very different world in which we live where the courts speak of different "rights". In the world we live, we have a right to small arms of a milita use and all other arms are simply allowed because no one has forbid them, as yet. If you doubt me, how do you explain various state bans on bogus assault weapons and California's recent 50cal gun grab?
The feds support unconstitutional State 'grabs' because they also support bans themselves. This is not a mystery, is it?
And it is the law of the land and all the posting on internet sites in the world and tilting at windmills will not change this fact. Change is only done by electing the right people.
Gee. -- No kidding. -- Do you really think repeating that mantra is any better than mental masturbation?
Forget indignation over court and legislative attacks on the Constitution. Indignation serves no purpose. Elect politicians who will select judges who have actually read the Constitution. Now there is an idea.
Yep, an idea that is not working, as we see by the actions of the Bush administration.
And your effective proposal is? Simply posting is little more than mental masturbation.
I favor the 'Free State' scheme. A direct challenge to fed gun laws by a State would eventually have to win.
From the state constitution. Written by elected representatives of the people of that state. Capable of being amended by the people of that state.
The state is (was) quite powerful. The Founding Fathers wanted it that way, and gave very few powers to the federal government. The states retained the rest.
The states could, and did, prevent people from speaking (until 1925), prevent them from assembly (until 1937), shut down newspapers (until 1931), establish a state religion and make you pay for it (until 1940), search your belongings without a warrant (until 1949) and admit it as evidence (until 1961), no right to an attorney (until 1963), etc. Provided, of course, that those rights were not protected by the state constitution.
Oh, and they could also "infringe on your RKBA", too. Still can.
robertpaulsen wrote:
If a law in your state restricting or removing arms violates due process of your state constitution, you may certainly take that to state court.
The federal court, however, would not be involved.
How do you figure that denying the average citizen access to thermonuclear weapons is a "hysterical" stand? That is precisely what the poster was advocating. I didn't take the debate to the level of nukes; that's where it began. (See post #16)
There are good examples of establishing rational boundaries to our rights. Freedom of the press ends where slander and defamation begin. Freedom of speech ends where threatening death or incitement to riot begin. Freedom to move my fist ends where my neighbor's nose begins. While the boundary between citizen arms and nation arms is more difficult to nail down, it does not follow that we should therefore abandon all restrictions entirely.
The argument that there should be a restriction somewhere is not nearly as ominous as the belief that there should be no restriction at all. I wholeheartedly agree that the current restrictions on arms are unconstitutionally severe. I'm no more excited than you to get to the Nerf bat level. However, it serves as no practical support to the 2nd Amendment to go around declaring that we should all be able to have a tactical nuke in our trunks if we can afford one, just to keep us even with the govt. I couldn't imagine a philosophy more detrimental to public opinion vis-a-vis the 2nd Amendment.
I don't want my neighbors, any of them, to have nukes, nor anthrax, nor Sarin at their disposal. I don't think the founding fathers wanted them to, nor did they pen the 2nd Amendment to guarantee their right to.
The "hysteria" accusation belongs squarly in the laps of those who began the debate with nukes. I don't presume to know where the line should be drawn. I think its quite obvious that one must exist, however.
Yes, you can always appeal. And they can always throw it out.
Huh? When did I ever say that? I'm certain that I didn't, because I do not think "assault weapons" should be banned.
This whole line began with #16, which referred to a past thread that claimed US citizens have the right to possess nukes and added, "Hard to argue with that logic...". I'm guessing you jumped into the debate further downstream, and incorrectly presumed that I support the AWB. I do not. I am arguing that the extreme interpretation of the 2nd Amendment which claims we should all have access to nukes is insane. The balance of my comments proceeded from there.
FWIW, I think the AWB cuts far too deeply into the individual citizen's rights. However, I also think its only sane and reasonable to say there should be a line somewhere between a stick and a nuke. I have not presumed to draw that line myself; only to argue that there should be one. The AWB's line is clearly in the wrong place, IMO.
"Seems Jim believes the Constitution doesn't apply until a court says it does. The understanding of most here is that the Constitution always applies; a court's job is to insist it does when the executive or legislative branch tries to say it doesn't.
The 14th Amendment subjects all states to the 2nd Amendment, period. Unfortunately, SCOTUS has failed to say "follow the law as written" to states who say "make me"."
About right. A "right" is only a right if it exists in law. Till then it is a mere privilidge existing till a politician or judge has a whim.
You might not like it, but that is reality. For that reason, elect politicians who will select Judges who understand and respect the Constitution as written.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.