Posted on 03/20/2007 4:04:15 PM PDT by neverdem
The term "people" of the Second Amendment refers to all free persons. It does not refer to unemancipated minors (subject to the will of their parents), nor convicts, parolees, or the criminally insane (all slaves of the state).
It seems clear that the Second Amendment never applied to those who were not "free persons" (nobody could have possibly intended it to arm slaves!). What exceptions would be "needed" if the Second Amendment were written "Any and all free persons have the right to own and possess, as well as construct, manufacture, or otherwise acquire without theft, any and all such weapons as would be suitable for use in a posse or militia. Free persons also have the right to transport such weapons and to carry them in ready condition on all public rights of way and in all private places where the owners give consent, in addition to the right to give, sell, barter, or otherwise transfer such weapons to other free persons. Any government action seeking to infringe these rights shall be void."
The majority of the states wanted it. What good does it do for a state to prohibit certain weapons when a state next door can smuggle them in?
I also accept your answer as fair enough.
From the very beginning the Bill of Rights have only applied to the federal government and not to the states. Some states even had an official religion after the ratification of the constitution.
Protecting those "official religions" was why the 1st started with "Congress shall make no law respecting an establishment of religion," - a ~State~ 'establishment of religion'.
--- The right of the people to the free exercise of religion, speech, press, assembly, and redress of grievances is protected from ~any~ level of governmental infringement, fed/state/local, by the supremacy clause.
It was not until the 14th amendment and subsequent "incorporation" SCOTUS rulings that certain Bill of Rights protections have been applied to the states.
So claim the 'states right/incorporation' political faction. -- Most serious readers of the Constitution realize that Article VI 'incorporated' any Amendments, -- as the "law of the Land", - laws that state/local officials had to support by oath...
- at this point in time, the SCOTUS has not yet ruled that the 14th amendment 'incorporates' 2nd amendment protections to the states.
And we all know why they cannot so 'rule'. -- Such a ruling would collapse the legal fiction of incorporation doctrine, -- that States can ignore "shall not be infringed."
-- from the beginning --- the states were not bound by the Bill of Rights.
--- many cases --[ about states ignoring the BOR's? -- Not true ]-- made it to the supreme court during the first 50 years after the ratification of the constitution - it's not like it took 150 years for anyone to bring a case before the court.
Cite your cases that support that idea; -- by and large the USSC was very reluctant to take cases of that sort, because the question of 'states rights' was being used to support secession by the slave states.
Check out Barron v Baltimore in my previous post - in a decision from John Marshall's court in 1833 expressly ruling that the Bill of Rights do not apply to the states.
Barron v Baltimore is notorious as a questionable ruling by a senile Marshall trying to 'save the union'..
The courts have read the second amendment as, "The people have the right to keep and bear arms as part of a well regulated militia."
I belive the 9th Circuit has gone even further than that and said, "The state has the right to keep and bear arms, not the people."
If I figured you to actually be interested, I'd look for the ruling.
I agree with you, those who founded this nation saw a need to have a tea party and even a full blown civil war.
I also hope this can be settled as our founders wished things would be but I am alot like you, in that, I wonder if another civil war over issues like this and taxation is close at hand.
One of my State's Senators is running for President now. As he campaigns, where is my representation? This would be one of many points where Duncan Hunter scored points with me.
Which is rooted in the individual right to associate or not associate. If no individuals want to peaceably assemble, the assembly cannot exist.
(C'mon, we said the Book Club was necessary to the advancement of a modern state -- is this important or isn't it?)
It is only important insofar as the needs of the constituent individuals are being served.
You said: Book clubs are formed to benefit the club members. You also said: The Militia ... exists to serve the purposes of its members.
So my analogy is holding up.
Yes. You've proved that both your Book Club analogy and your interpretation of the militia clause are equally faulty. They both fail when you attempt to say the member's rights exist to serve the organization, therefore the right is about the organization and not the members thereof.
It protects an individual right when used collectively.
It also protects an individual right when used individually, so therefore is not of sole benefit to the Militia. Or do you expect the Militia to be called out to deal with every mugging?
Obviously you don't know what 922(o) is.
It has nothing to do with the states.
It's a purely federal ban on a category of arms - squarely at odds with the 2nd Amendment.
Go look it up. You may find it very interesting (and no, I'm not being sarcastic - you really might find it interesting).
The courts have read the second amendment as, "The people have the right to keep and bear arms as part of a well regulated militia."
Given that the second amendment pre-dates the the "reading" by the courts, do you have any idea how ridiculous that explanation sounds?
Was that really a quote from Franklin? There has been a few that has looked similar to what he might have said but he never said it.
I told you to look it up, didn't I? Now look how foolish you appear.
Police power is inherent to a state. When a state is formed, it has police power. It's part of the definition of a state. It's not delegated. It just is.
Lazy.
"Police power is the capacity of a state to regulate behaviors and enforce order within its territory, often framed in terms of public welfare, security, morality, and safety. Police power is legally considered an inherent right, and is limited only by prohibitions specified in the constitution of a state, making it the most expansive authority exercised by a state.
The concept of police power (or simply "police") in English common law dates back at least four centuries and roughly coincides with the breakdown of the feudal order in Europe and the development of towns and cities (polis)."
"you think the defense of the Nation is what is not to be infringed"
No, I was answering your question. If a state disarms its citizens, it cannot contribute to the national defense, thereby interfering with Congress' ability to call forth the Militia.
When you cite the 9th, I will be content to await the high rate of overturned cases and rulings. If it's all the same to you.
Notice that the courts had to change words and inject words in order to present their own meaning. When reading plain language one does not need to do that.
Last time I checked, it took an act from Congress to change langauge in law. Are you supporting the judicial branch's changing of the wording in law? Sure sounds like it. How would you argue that action to be constitutionally valid and not an abuse, an overstep, of power by the judicial branch?
The time of ideological interpetations is over RP. SCOTUS cannot punt this one as they have for so long.
I guess your answer to my question is "Cuz some courts said so". Is that accurate?
You mean some courts have done so. The DC Circuit decision that this thread is about has ruled otherwise.
Be that as it may ...
Hey, I thought, "Nude dancing is protected speech" was ridiculous. I thought, "Political ads 60 days before an election is NOT protected speech" was ridiculous. I thought "Penumbras of emanations" was ridiculous. I thought, "Eminent domain means the city may take private land and sell it to developers" was ridiculous.
Your point?
Close. Cuz most courts said so.
Unless maybe we should have you interpret the U.S. Contitution?
All State powers are delegated. "The powers not delegated to the United States by [We, the People via] the Constitution, nor prohibited by [We, the People] to the States, are reserved to the States respectively, or to the people."
This idea is enshrined in the Constitution, our Supreme law, to make manifest that it is a Government intended to secure the Rights of Men, as promised by the Declaration. "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,..."
Now look how foolish you appear.
If a state disarms its citizens, it cannot contribute to the national defense, thereby interfering with Congress' ability to call forth the Militia.
So, in your world, the citizens rights of self-defense exist to allow the State to fulfill its obligations to Federal government's need for national defense.
Do you know the first rule of holes?
No. Most.
If we look at, say, the forty-odd lower federal circuit court gun cases, we're looking at 38 saying a collective right and 2 saying an individual right. 9 circuit courts citing a collective right, 2 circuit courts citing an individual right.
If it goes to the U.S. Supreme Court to decide, that's what they're looking at -- lower court decisions as stare decisis.
The Constitution is the measure of the courts, not the other way around.
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