Posted on 09/23/2006 11:02:00 AM PDT by cryptical
History lesson: Second Amendment requires regulation
First, a calming caveat: Saul Cornell doesn't want to take away your guns. He's neither antigun nor progun. He really isn't a gun guy at all. His thing is history.
Cornell, a professor at Ohio State University, passed through town the other day with much to say about regulating guns. Yet his aim isn't to take sides in the modern gun-control debate -- a squabble he thinks has strayed rather off-topic. It's far more interesting, he thinks, to look back to learn what this country's founders actually thought about gun regulation.
They couldn't imagine life without it, says Cornell. That's the point of his new book, "A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America." In it, Cornell excavates the foundations of the Second Amendment and offers some startling conclusions.
"As long as we've had guns in America," says Cornell, "we've had gun regulation." In fact, the Second Amendment's chief purpose is to assure such regulation. Without it, the founders feared, anarchy might take hold.
(Excerpt) Read more at startribune.com ...
As open carry of any and all weapons one wished was the norm at the time, concealment of a weapon implied nefarious intent. It was thought that an honorable man had no need to conceal arms as he could carry them openly. Honor used to actually MEAN something to people.
Well except for the little minor fact of legal construction wherein an amendment to a document takes priority, yeah
You know - that whole "...shall not be infringed." thing...
It would be much easier to not treat you with contempt if you didnt say things which were so obviously false.
Tne 1934 NFA is most assuredly still in place. You still must obtain a $200.00 tax stamp for the transfer of any NFA weapon - and yes, you can still own full-auto firearms and short-barrelled rifles and shotguns which are directly affected by the NFA.
Most notably, what prevents the sale of full auto weapons to private individuals is the scarcity of them as, through another illegal (and highly misleadingly named) law known as the Firearms Owners Protection Act (FOPA) forbids the sale of any full-auto firearms manufactured after the passage of the act in 1986 to private individuals.
Ok - i was trying to be polite. Would you prefer i said you were retarded?
Second, "prior restraint" only applies to speech/press issues, so there's no one-to-one comparison to anything else.
Where on God's green Earth did you get that silly-assed idea?
I'm saying that the second amendment may be reasonably regulated as well as the first or any other amendment.
Care to explain how? I fail to see how the phrase "...shall not be infringed." allows any room for legislation or restriction. As stated before, "well regulated" and "well-regulated" are two very different terms.
To say that we can't touch the holy second amendment is ludicrous -- that we must protect the right to keep and bear all arms, by all individuals, all the time.
Why? We allow all sorts of things under the 1st Amendment.
Are you aware that when the South lost the war, even THEN they were not disarmed - after having just taken up arms against the state in open rebellion? Even Lincoln recognized "thou shalt not fuck with a man's right to be armed" may have well been the 11th Commandment.
For fuck's sake, even the Congressional debates on the 1934 NFA acknowledged that Congress couldnt simply outlaw certain weapons as it would violate the 2nd Amendment. Thats why the NFA is written as a TAX measure and why the ATF was tasked with its enforcement, as until recently, they were part of the Treasury Department.
It could even be legitimately argued that the 1968 GCA and the 1986 FOPA were constructed as "interstate commerce" regulations as Congress knew to simply pass those laws without some perverse justification they would be tossed out as unconstitutional violations of the 2nd Amendment.
Oh, and to the best of my knowledge, the government does not punish irresponsible acts. We punish illegal acts.
Good qualifier, and nice wordsmithing.
The government punishes irresponsible acts by making such acts illegal.
I was quite clear. Demonstrate where the federal government is granted the authority to restrict private ownership of weapons. That means ANY weapons - new, old, small, large, etc., and that also means ANY restrictions - and yes, limits and licensing are most assuredly restrictions (infringements, if you prefer).
"Contempt" placemark..
Liked that one didja?
Sure he did. In post # 229 he said, "The Bill of Rights ... places limits on the federal government, NOT the states or citizens. I agree.
Then, in the very next post (#230), he states, "Once something is deemed a (federal) Constitutional right, it always trumps state and local laws." So he's now saying the Bill of Rights DOES trump state and local laws. Correct?
I simply asked him to explain the discrepancy.
"Honestly not sure if it is part of the state Constitution or just a state law, but local municipalities may not preempt state law in California.
California has Home Rule, meaning that local municipalities may indeed preempt state law. However, the judge ruled that Section 3 of Proposition H had an effect outside the city limits and violated state law (not the state constitution). Interesting.
Illinois has Home Rule and Chicago used that to ban handguns within the city limits. Very similar to Proposition H. It held.
"You want to pretend it, i refuse to believe your delusion."
Cognitive dissonance.
And citizens have the constitutionally protected second amendment right to "keep and bear" these arms. Correct?
Define "keep and bear".
I was referring to the lower court's opinion. Nowhere do the courts reference Miller's connection to a militia or to a membership requirement to possess a shotgun of this type.
The prosecution's brief can ask whatever it wants. It can throw in the kitchen sink, too. It doesn't mean the U.S. Supreme Court must be guided by that or even consider it, for that matter.
And it doesn't look like they did.
None. But I'll say it again, you're confusing arming a state Militia with the second amendment's protection of the RKBA.
You haven't read the Militia Act of 1792 as I requested, did you? The state Militia had all the arms necessary to overthrow the federal government. They still do. But not all of those arms are protected by the second amendment's provision of the "right of the people to keep and bear arms".
You're re-writing the second amendment to be the "right of the state Militia to be equipped with all useful arms" or somesuch fantasy. The second amendment protects the right to keep and bear arms of individual citizens who are members of the well regulated state Militia.
The citizen provides his own weapon and the state provides the artillery, cavalry and leadership.
But all you found was a reference to a dragoon. Well, if you're not trying, why should I? I will not be kind enough.
Wow... I think you are going for a record here Bobby. How many different posters have come on this thread, completely dismantled your idiotic arguments, and yet you still go on.
I suppose next you'll be arguing that the Sun revolves around the Earth and that the Earth itself is flat... Denial of reality seems to be your particular speciality.
What I meant was that it didn't support the case for an individual RKBA. The author found an "implied" support in Miller, then condemned every post-Miller decision as biased, corrupt, rationalized, and agenda-driven, and that lawyers, professors and judges are all in on the conspiracy.
Long on speculation and short on fact.
"I recommend that you reread the section entitled A. Second Amendment Scholarship and the Elite Bar"
Once is enough. I'm more swayed by actual facts than conspiracy theories.
Yes we do.
But I'd like you to point out where the 9th Circuit did that. Which case? You made the claim. I'm simply asking you to support that claim.
I use them interchangeably. How are they "very different"?
"It also has precisely zero bearing on the right itself."
Not when every lower federal court (save one) states that the right applies to members of a Militia. Then it has lots of bearing.
"Let me make sure i understand this... The standing army, which Congress is specifically tasked to raise and arm, somehow requires and gains the protections of the 2nd Amendment?"
No, not the standing army. The second amendment states, A "well regulated Militia".
"After all, if it is only they who have 2nd Amendment protections, then certainly there could be no local, state or federal law which could legally infringe upon their right to keep and bear arms of a nature suited to use in the military."
No. The second amendment only protects against federal infringements. State and local laws prevent the Guardsmen from taking their arms home with them.
"there is legal precedent which shoots your silly-assed theory about only the National Guard being protected by the 2nd Amendment. Said case being Silvera v. Lockyer"
Oh? And what would that be?
What does that have to do with anything?
If the second amendment applies to all the states, how is it constitutional that some states allow concealed carry and some don't? What happened to Due Process and Equal Protection? How can some states infringe on my right to carry concealed?
I do know. Reasonable regulations applied to a limited number of arms to meet a compelling government interest is not "infringement".
Its done with other amendments.
I understand. A low IQ has that effect.
"Along with the lower standards of rational basis review and intermediate scrutiny, strict scrutiny is part of a hierarchy of standards courts employ to weigh an asserted government interest against a constitutional right or policy that conflicts with the manner in which the interest is being pursued."
See? Constitutional rights may indeed be reasonably regulated.
"We allow all sorts of things under the 1st Amendment."
I note that you didn't say we allow everything under the 1st Amendment. Some infringing going on with the 1st?
"Good qualifier, and nice wordsmithing."
Hah! This coming from Mr. Well Regulated. Or is it Mr. Well-Regulated?
American Bar Association - Special Committee On Gun Violence - Second Amendment Issues
"As part of a comprehensive policy position adopted in 1994, the ABA committed itself to work to better inform the public and lawmakers through a sustained educational campaign regarding the true import of the Second Amendment... As lawyers, as representatives of the legal profession, and as recognized experts on the meaning of the Constitution and our system of justice, we share a responsibility to the public and lawmakers to "say what the law is." The ABA is committed to bringing about a more reasoned and lawyerly discussion of the meaning and import of the Second Amendment."
Ah yes, the self-proclaimed "experts" on Constitutional meaning; short on historical fact, long on biased, corrupt, rationalized, and agenda-driven Constitutional interpretation. Seems that a good portion of the judiciary and the legal community enjoy wiping their asses with the Constitution. Their agenda has been documented in Judge Andrew P. Napolitano's books Constitutional Chaos and The Constitution in Exile.
"If the recent work of gun control advocates (and that of many federal courts)[16] is any guide, there has not been a rise in the level of professional discourse on their side. It appears that many of these scholars are not only allowing their work to be influenced by their strong feelings about the utility of gun control and guns in general, but also are not interested in seriously engaging the constitutional arguments put forth by Second Amendment scholars. Worse still is the blurring of the lines between popular and professional discourse on the part of gun control advocates. It is one thing to write an opinion piece expressing, well, one's opinion on the constitutionality of gun control; it is quite another to present the same argument festooned with a few citations and call it "scholarship"[17]...
The ABA's willingness to pronounce the Second Amendment a dead letter rests upon the fact that all lower federal courts presented with Second Amendment challenges to federal gun control regulations have chosen to interpret (p.241) Miller as holding that the Second Amendment protects no individual right. But, as I have shown in another article,[89] a casual glance at these federal court opinions show them to be at best misleading[90] and at worst, error-filled[91] and intellectually dishonest.[92] Furthermore, as Professor Powe writes: "[C]onstitutional law scholars have never been in the habit of deferring on constitutional issues to the random panels of lower courts and why [the Second Amendment] should be the one area where we would choose to do so escapes me."[93]
It is a curious feature of the book that the lawyer-lobbyist for a gun control group (Henigan) is held forth as the objective expert on the constitutional history of the Second Amendment, while the spokesman for the "premier" legal professional association, for his part, blithely assigns a portion of our nation's legal charter to join the Privileges and Immunities Clause of the Fourteenth Amendment,[94] the Ninth Amendment[95] and the Guarantee Clause[96] in constitutional purgatory--destined forever to be what Lawrence Sager termed "underenforced constitutional norms."[97] Neither the rule of law, nor public perception of the legal profession is well served by treating a provision of the Bill of Rights as meaningless, particularly when doing so is out of line not only with public opinion,[98] but also with the opinions of legal scholars who have considered the issue thoughtfully.[99] As the final chapter shows, the authors' solutions to America's gun "problem" requires that the Second Amendment be neutralized, preferably by lawyers who have the authority to influence public opinion...
It appears that gun control advocates are employing this sort of scholarship as a substitute for constitutional discourse in a rear-guard action--a counterrevolution--against those "Standard Model" Second Amendment scholars[34] who have taken the time to substantiate their views (often against (p.232)their personal predilections).[35] This "talking-head constitutionalism counterrevolution," if left unchallenged, represents an unfortunate degradation of legal scholarship...
Unfortunately, despite McClurg's faith in the ability of professional discourse to elevate public discourse, the opposite appears to be true in the debate over the meaning of the Second Amendment: the emotional appeals of public discourse are finding their way into the pages of law reviews, and are jeopardizing the ability to maintain meaningful professional discourse on the matter..."
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