Posted on 03/20/2007 4:04:15 PM PDT by neverdem
On March 9, the Circuit Court of Appeals for the District of Columbia issued a groundbreaking ruling. It declared in a 2-1 decision that the Washington, D.C. ban on handgun possession in private homes, in effect since 1976, is unconstitutional. The court reached this conclusion after stating unequivocally that the Second Amendment's right to keep and bear arms applies to individuals and not just "the militia."
It is quite likely that this ruling will be appealed to Supreme Court, which hasn't offered an interpretation of the Second Amendment since 1939.
Appalled by the District Court ruling, the Washington Post editorialized that it will "give a new and dangerous meaning to the Second Amendment" that, if applied nationally, could imperil "every gun control law on the books."
The Post accused the National Rifle Association and the Bush administration's Justice Department of trying "to broadly reinterpret the Constitution so as to give individuals Second Amendment rights."
But actually, to argue that the Second Amendment does not apply to individuals is a reinterpretation of the Constitution and the original intent of the founders.
One of the major concerns of the anti-Federalists during the debate over the Constitution in 1787 was the fact that the new document lacked a Bill of Rights. In order to get the Constitution ratified, the framers promised to pass a Bill of Rights during the First Congress as amendments to the Constitution. The Second Amendment with its right to keep and bear arms became part of that package.
What was the original intent of the Second Amendment? Was the right to bear arms a collective right for militias, or an individual right for all citizens? The "Dissent of the Pennsylvania Minority," from the debates of 1787, is telling. This document speaks...
(Excerpt) Read more at realclearpolitics.com ...
I think the answer is more to the NO LIMIT side. I would draw a very firm line at chemical and biological agents, even for governments to own or possess. Nukes are problematical for their serious storage requirements. Other than that, if you can afford it, go for it. Artillery was also privately owned back in the day... it was to armed, PRIVATE vessels that letters of Marque and Reprisal were to be issued. That meant it was surely acknowleged that naval guns (cannon and artillery) were ALSO meant to be in private hands...
Yeah. I got my fingers crossed. After all, it appears that our only hope for the second amendment is that the USSC knows how to read, huh? I mean, come on. The meaning of the second amendment is so crystal clear -- all they have to do is read the thing.
Not answered.
NCSteve:I would offer that the founding principle of this constitutional republic is that the "commune" may not regulate individuals' rights and that there is no such fine distinction as you offer, arbitrary as it is.
Not answered.
So are you offering that the distinction between your adjectives of natural and unalienable is adulthood? Again, this is completely arbitrary.
Not answered.
NCSteve:If you assume the right to say that a 10 year old cannot own a handgun, why would you not similarly assume the right to incarcerate him?
robertpaulsen: Because I would be infringing on his inalienable right to liberty without individual due process. If he murdered someone, and was convicted in a court of law with due process, I may take away HIS liberty -- but not ALL 10-year-olds.
Not an answer and you unsuccessfully tried to cherry-pick the question. The question was an attempt to get you to give objective criteria for your distinction between classes of rights. You offered an associative example involving a 10 year old. The example was actually non sequitur, so I tried to get you to expand, instead you offered this:
NCSteve: What objective principle distinguishes your claims?
robertpaulsen: Life, liberty, and property are inalienable rights and CANNOT be removed without individual due process. Right there in the 14th amendment. All the rest are natural rights. There you go. Easy enough for even you to understand.
Apparently, you were offering the Fourteenth Amendment as the source of your objective criteria. This was also the point at which you started to get belligerent and asked your question. However, you had not successfully rebutted my response and still had left some of my original response points unanswered. Your Fourteenth Amendment answer was problematic, so I responded with:
NCSteve: Ah, so it is the Fourteenth Amendment that distinguishes between "natural" and "inalienable?" That's an interesting take. Very original, but not very useful since the Fourteenth Amendment doesn't really enumerate these "inalienable" rights, once again leaving the interpretation open to whoever has the guns to enforce it.
No answer from you on this, other than more belligerence and added taunting.
By way of illustrating the difficulty with your thesis, I offered this:
NCSteve: Let's take a more concrete example. I have a right to refuse any and all medical procedures on my body. Is that an inalienable right or a natural right? According to your (arbitrary) criteria, it appears to be a natural right and subject to the whims of democracy and/or oligarchy. And please don't bother trying to shoehorn this into one of your enumerated "inalienable" rights (like telling me my body is my property). That is also arbitrary since it allows anyone with sufficient capacity in rhetoric and argument (i.e. a lawyer) to redefine the criteria.
No answer to any of this. At this point you have stopped really reading my posts and have gotten your ego bruised. You simply fall back on taunts and ad hominem. I knew that was where we were in the discussion, so I cut to the chase:
NCSteve:In any case, this is foolish. Your distinctions between classes of rights are straw men invented from whole cloth to support your collectivist argument against the blanket right to keep and bear arms and your convenience definitions of what constitutes arms. The inalienable nature of a right and any post facto requirement for due process of law to violate it has nothing to do with an assumed collectivist right to regulate it. The Bill of Rights is very clear that the government, most specifically the federal government, must not abridge its enumerated rights. Your personal incredulity that they would unequivocally disallow collectivist regulation of these rights is insufficient to negate the fact that they chose to do so.
You also answered none of this, continuing to insist on evading the topic by asking me pointless questions, aimed at forcing me into a defensive posture by offering anecdote.
This is a public forum. If you are going to hold forth, you must be prepared to defend your thesis. If you dislike having to defend it and are simply interested in postulating, I suggest you find a different forum. I also suggest you do some studying on rhetoric, argument, and counterpoint.
I hold that the Bill of Rights was more than just a restriction on Federal Powers under the Constitution, it was also a declaration of what the States agreed to uphold in joining to the Union.
Good point, much ignored; -- all the new States that joined our union were required to have a "Republican Form of Government", -- and their State Constitutions were subject to the approval of Congress. - Utah submitted several documents, denied over the space of nearly 40 years; -- because they did not protect 1st Amendment religious rights.
--- Yet another proof positive that the 1st applied to a State long before 'incorporation doctrine' was invented.
It was a declaration of a minimal set of rights that both State and Federal governments must uphold.
Amazing isn't it, - how many self styled conservatives can't quite 'understand' such a basic concept.
-PJ
If you take away one amendment then they are all in jeopardy. Just imagine without the second amendment what's to stop someone taking away the First amendment and then so on and so on. Then it will be every man for himself. But just a thought here maybe that's what these idiots really want. It would be bad for them they would be the first ones silenced or reeducated if you know what I mean.
Well now it makes sense. I should have caught it way back when you said "they never intended it to be an exhaustive list". Then your constant concern with interpretation. Then the blatant reference to the Bill of Rights and that they may not be abridged by any government.
Well, declare every right an inalienable right and there's NO WAY to misinterpret that! "Shall make no law" means no law. And "shall not be infringed" mean zero infringements.
Well, life is so simple when you're you. Golly gosh, if it only worked that way, huh?
"Reasonable regulations"? Not in your vocabulary. "Strict scrutiny? Nope. "Compelling state interest"? Never heard of it.
Of course, you can't back up your position. How can you? It's fantasy! Now don't tell me. Let me guess. You're a Libertarian, right? (Or do you prefer libertarian? Most do.)
Not to be argumentative but no lower federal circuit court case until recent years assumed any collective right. That is a recent interpretation. There is a large number of court decisions that assume an individual right right up through the 19th century. There are actually not a lot of court decisions that discuss the right directly because it was always understood as an individual right and society until the 1920s accepted firearms ownership as a normal part of everyday life. An exception includes the famous Dred Scott decision in which it is mentioned that blacks can not be considered full citizens because then they would have full rights including the right to bear arms. Later in the 19th century, laws regulating the concealment of firearms began to crop up. The NFA of 1934 was the first law focused on arms. WW1 had horrified people with the power of advances in military technology, especially aircraft and poison gas although artillery was the real killer. The popular press and movies of the early 1930s portrayed gangsters with machine guns threatening good society and the result was the severe regulation of machine guns. Increasing urbanization of the population and dissociation from traditional hunting and self-reliant lifestyles further distanced Americans from their self-defense rights. The cascade of restrictions really came after the 1960s assassinations of prominent public figures. The collective right argument did not become well known until the 1990s. I wrote a paper reviewing the rulings on personal protection technologies about 7 years ago but the best review of the law was a review published about 3 years ago associated with the Emerson case, I believe. I hope someone finds and posts it.
You remind me of a joke I read many years ago.
Two men are talking about the Constitution, and the first man asks the second man "Do you believe in the 1st amendment right to free speech?"
The second man answers, "Absolutely! People should be able to freely express themselves, 'speak truth to power'."
The first man then asks "Do you believe in the 2nd amendment right to bear arms?"
The second mans replies "Oh, no. Guns are bad, I don't think anyone should have a gun."
The first man then demands "Then shut the heck up!"
-PJ
Unfortunately, that is not true in all cases. -- If you become desperate, unable to defend your thesis, you have an 'out'.
-- You can demand that your opponent no longer "post to or about me"; -- in effect shielding yourself from direct questioning -- at least from the one individual giving your thesis the most trouble.
You wrote,
"I'm simply stating what the second amendment protects from federal infringement.
We should all be able to agree on this point, the second amendment protects the "right to keep and bear arms" from infringement. However, the word "federal" is not included in that, or the first or any other amendments. A critical addition that would, I am sure you agree, dramatically alter the meaning of this and other amendments in the BOR. However, the word "federal" does not appear in the second amendment.
"Therefore, I'm saying that the original intent of "well regulated" was to have minimal training to act as a unit, and "militia" was the population-at-large."
The author of the second amendment, I believe George Mason is important here, was like others of the time familiar with the experience of fighting the well-trained, regulated, and coordinated British infantry. von Steuben came to the aid of Washington and put regulation into the rough and ill-coordinated ways of the Continentals. The need to have Americans ready and well-regulated in the ways of military action was viewed as important if the young nation was to survive in a world of big European military powers. The federal government had too few resources to properly train Americans then, however. It can be argued that the federal government has neglected the supply and training of citizens ever since.
Well, according to the Militia Act of 1792, "militia" was "each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years".
As far as an individual right to keep and bear arms, that was (and still is) up to each state. If a state wishes for arms to be kept at home, fine. If they want the arms kept in an armory, fine also. If a state wishes to limit its citizen's access to arms, that's up to them (assuming the state constitution allows it)."
The "right to keep and bear arms shall not be infringed." Not by the federal government, the state, the county, your town council, or your nosy neighbor. "...shall not be infringed." The state is welcome to supply the citizenry with arms and with training. However, it can not infringe the right to "keep and bear arms." My protection is not to be subject to infringement by government bodies.
Once again, "...shall not be infringed."
You inserted yourself into this thread looking for a fight. I simply grew tired of responding to your endless probing without you offering anything in response.
Endless probing you say? Look at your post #384 for a summary in case you forgot.
I've dealt with way too many trolls like you to continue this farce. You're more interested in scoring gotcha points instead of serious debate. Go play with someone else.
You're splitting hairs. Voicing a threat is committing an act of harm just as falsely crying "fire" in a crowded theater is. Possession of the means to fulfill the threat isn't even necessary to be arrested and convicted of a crime.
Any time. I hate PDF files, which was my primary reason for converting it. If you're interested in other 2nd amendment cases, you might want to go to my legal pages.
The copy of Miller I have is one of the most extensive you'll find out there. I stole the original html, greatly streamlined it and inserted hyperlinks for the table of contents and stuff. The fellow who originally put it together deserves some major kudos for that effort.
Most of those cases occurred in the 90's, that's correct. But there were others. In Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), the court said,
"Construing this language according to its plain meaning, it seems clear that the right to bear arms is inextricably connected to the preservation of a militia." ..... "In an attempt to avoid the Miller holding that the right to keep and bear arms exists only as it relates to protecting the public security, appellants argue that ..."
In United States v. Kozerski, 518 F. Supp. 1082 (D.N.H. 1981) the court ruled,
"“the right guaranteed by the Second Amendment is a collective right to bear arms rather than an individual right, and has application only to the right of the state to maintain a militia and not the individual’s right to bear arms."
United States v. Swinton, 521 F.2d 1255, 1259 (10th Cir. 1975), the court said,
"There is no absolute constitutional right of an individual to possess a firearm.”
"There is a large number of court decisions that assume an individual right right up through the 19th century"
What kind of courts? Federal circuit courts?
It does not. But that is indeed the only entity is applies to.
"The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.
The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government ..."
-- U S v. CRUIKSHANK, 92 U.S. 542 (1875)
Have a nice day.
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