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Prof wrong about right to bear arms
Contra Costa Times ^ | 12/01/2007 | DAVID T. HARDY

Posted on 12/07/2007 5:57:37 PM PST by neverdem

DAVID T. HARDY From the legal community

PROFESSOR Erwin Chemerisnky's column ("No need to choose meaning of Second Amendment" in the Times Nov. 27), does little justice to the Second Amendment.

He begins by stating that "The language of the Second Amendment is a puzzle," citing its reference both to a "right of the people" to arms, and its reference to the necessity of a well-regulated militia.

The dual nature of the amendment is no mystery. The first Congress sought to reassure two bodies of concerned Americans, one of which (e.g., George Mason) feared that Congress would neglect the militia system, the other of which (e.g., Sam Adams) feared it might disarm the people.

The wording becomes utterly clear once we realize that, at the time, "militia" meant the entire male citizenry, bearing their own arms, and "well-regulated" meant "orderly" (Samuel Johnson's dictionary treated the two as synonyms, and many writers referred to a well-regulated gentleman, or well-regulated tastes). "Orderly, armed, citizens being necessary to a free state, the right of the people to keep and bear arms" makes perfect sense.

We have other, clear evidence as to what the first Congress meant. Even as it debated, Tench Coxe released a widely-reprinted newspaper article describing the amendment as protecting the people's right "to keep and bear their private arms."

Coxe was a friend of James Madison, and Madison wrote back to inform him that the article was in the newspapers in New York, where the first Congress was meeting. There is more: The first Senate voted down a proposal to make it a right to keep and bear arms "for the common defense."

Chemerisnky contends that the Second Amendment was meant only to "keep Congress from interfering with state militias." If so, was Dwight Eisenhower liable to impeachment when he called National Guard units into federal service, to prevent them from being used to stop desegregation? Can any state's militia decide to "go nuclear" at will?

Next, he argues that the Supreme Court in 1939 "rejected the individual rights view of the Second Amendment ... " Quite the contrary. In that case (U.S. v. Miller) the government's primary argument was that the amendment protected only state militias. The Supreme Court did not accept that. Instead it treated the right as individual (the words "National Guard" are nowhere in the ruling; the high court spoke of "militia" in the colonial sense of "every person capable of serving") but limited to firearms suitable for militia or military use.

It cited 19th century state cases that excluded bowie knives and brass knuckles from right to arms provisions.

Finally he contends that, if recognized, the right to arms "is surely not an absolute liberty." Neither is freedom of speech (try threatening the president, or lying to an officer, and see how absolute it is). He argues that guns are simply property and can thus be freely regulated. So are printing presses, we might observe. The framers did not single out arms and presses for special protection because of their economic value.

In law school, we were told to be careful what we ask for, because the fates may give us just that. If the Supreme Court upholds a broad Second Amendment right, tens of millions of gun-owning Americans will be reminded of the high court's role as protector of their Constitution.

If it goes the other way, those millions will be asking how arms ownership, expressly mentioned in that document, is unprotected while abortion (no where mentioned) is broadly protected.

They will come to believe that the Constitution is merely a paper covering for arbitrary judicial rule. This is not a lesson we want taught in a democracy.

Hardy is an attorney and director of the documentary "In Search of the Second Amendment" and is a resident of Tucson, Ariz. He has published 10 law review articles on the right to arms.


TOPICS: Constitution/Conservatism; Crime/Corruption; Editorial; Politics/Elections
KEYWORDS: banglist; chemerisnky; davidthardy; hardy; heller; parker
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Parker v. Washington D.C. in HTML courtesy of zeugma.

We also note that at least three current members (and one former member) of the Supreme Court have read “bear Arms” in the Second Amendment to have meaning beyond mere soldiering: “Surely a most familiar meaning [of ‘carries a firearm’] is, as the Constitution’s Second Amendment (’keepand bear Arms’) and Black’s Law Dictionary . . . indicate: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.” Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting, joined by Rehnquist, C.J., Scalia, J.,and Souter, J.) (emphasis in original). Based on the foregoing, we think the operative clause includes a private meaning for”bear Arms.”

1 posted on 12/07/2007 5:57:38 PM PST by neverdem
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To: neverdem

They will come to believe that the Constitution is merely a paper covering for arbitrary judicial rule. This is not a lesson we want taught in a democracy.

DA*N straight.

2 posted on 12/07/2007 6:03:39 PM PST by Luke Skyfreeper
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To: neverdem

If the founders intended to disarm Americans, would they have left that chore to descendants one or two centuries later?


3 posted on 12/07/2007 6:05:58 PM PST by Psychic Dice (ArtOfPsychicDice.com)
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To: neverdem
Liberals cannot insist the Constitution protects only rights they choose to read into it while it abrogates a right that is plainly written into it. If their line of reasoning is allowed to stand, no one's rights will ever be safe.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

4 posted on 12/07/2007 6:06:56 PM PST by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives In My Heart Forever)
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To: neverdem

If one diagrams the amendment, the complete subject is:

“the right of the people to keep and bear arms”

and the complete predicate is:

“shall not be infringed.”

Simple subject: right


5 posted on 12/07/2007 6:08:52 PM PST by fetal heart beats by 21st day (Defending human life is not a federalist issue. It is the business of all of humanity.)
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To: neverdem
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

These "unalienable Rights" imply the right to defend the lives, property, and liberty of yourself, your family, and your community, if need be...from infringement by others and by the Government.

As for the Second Amendment, the text is quite clear: "A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed." Individuals have the right to "keep and bear arms" (including guns). And, of course, individuals may be called upon, in times of need, to repel enemies (as part of the Militia).

6 posted on 12/07/2007 6:10:42 PM PST by rabscuttle385 (This tagline intentionally left blank.)
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To: Psychic Dice
It makes no sense to assert nine of the 10 Amendments deal with individual rights and the Founders for some mysterious reason, reserved a collective right for the other one.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

7 posted on 12/07/2007 6:11:00 PM PST by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives In My Heart Forever)
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To: neverdem
"He begins by stating that "The language of the Second Amendment is a puzzle, ..." "

Must be an english teacher.

8 posted on 12/07/2007 6:14:51 PM PST by spunkets ("Freedom is about authority", Rudy Giuliani, gun grabber)
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To: neverdem

Mossberg 500A Cruiser with Surefire Tactical Light.
this is my weapon (but not my pic). damn fine weapon!
9 posted on 12/07/2007 6:16:09 PM PST by robomatik
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To: spunkets

LOL!


10 posted on 12/07/2007 6:16:24 PM PST by neverdem (Call talk radio. We need a Constitutional Amendment for Congressional term limits. Let's Roll!)
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To: spunkets

If he was an honest English teacher, the language would not be a puzzle.


11 posted on 12/07/2007 6:16:52 PM PST by fetal heart beats by 21st day (Defending human life is not a federalist issue. It is the business of all of humanity.)
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To: neverdem
There are no other amendments in the Bill of Rights that deal with the "rights of the state", why would the second amendment be the only one?

Unless I'm mistaken the "Bill of Rights" amendments deal with the rights of the people.

12 posted on 12/07/2007 6:18:12 PM PST by infidel29 (Voting for Paul? Might as well make it Ru Paul, he's got better legs.)
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To: infidel29
The 10 Amendments only state for clarity, a few of the rights possessed by the people. It does NOT grant them. The rights of the people come from their Creator. That is how American constitutional theory has always read the Bill Of Rights.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

13 posted on 12/07/2007 6:20:09 PM PST by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives In My Heart Forever)
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To: Luke Skyfreeper

I’m sure that somewhere in all of history we can find at least one founding father pronouncing that the Constitution is a “living” document, evolving and variable in its content. A document subject to the times and vagaries of the situation imposed upon it! /s


14 posted on 12/07/2007 6:21:50 PM PST by doc1019 (Fred Thompson '08)
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To: Psychic Dice

wow, is it really that simple?


15 posted on 12/07/2007 6:21:53 PM PST by gusopol3
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To: goldstategop
Correct, the rights enumerated are not "granted" by the state and the Bill of Rights deals only with the rights of the people. Why would the second amendment be interpreted as a right granted to the people by the state or a right of the state and not the people?

It wouldn't.

16 posted on 12/07/2007 6:24:46 PM PST by infidel29 (Voting for Paul? Might as well make it Ru Paul, he's got better legs.)
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To: neverdem
Chemerinsky is to the left of Lenin.

If it promotes freedom, he says it is unconstitutional.

If it promotes state power and socialism, he finds for it.


17 posted on 12/07/2007 6:25:11 PM PST by Travis McGee (---www.EnemiesForeignAndDomestic.com---)
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To: Travis McGee; Joe Brower

Here’s Hardy.


18 posted on 12/07/2007 6:25:27 PM PST by neverdem (Call talk radio. We need a Constitutional Amendment for Congressional term limits. Let's Roll!)
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To: goldstategop
Let's just take it from the "father of the bill of rights."

"What is the militia? It is the whole people, except for a few public officials." ~George Mason, 1788


19 posted on 12/07/2007 6:27:29 PM PST by Travis McGee (---www.EnemiesForeignAndDomestic.com---)
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To: neverdem
Here's what Madison intended.

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

Reads to me that he believed the right of the people to keep and bear arms was a foregone conclusion. It shall not be infringed because a well regulated militia is the best security of a free country.

20 posted on 12/07/2007 6:31:00 PM PST by ItsForTheChildren
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To: fetal heart beats by 21st day; neverdem
"If he was an honest English teacher, the language would not be a puzzle."

That's right. I guessed wrong though, he's a lawyer. Erwin's the Alston & Baird Professor of Law at Duke Law School. He's a political lawyer. Another of his projects is representing one of the jihadis in Guantanomo. I wouldn't expect any honesty from this guy. He's got an agenda to advance.

21 posted on 12/07/2007 6:36:52 PM PST by spunkets ("Freedom is about authority", Rudy Giuliani, gun grabber)
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To: fetal heart beats by 21st day; neverdem
ooops... Link's gone. Erwin
22 posted on 12/07/2007 6:39:22 PM PST by spunkets ("Freedom is about authority", Rudy Giuliani, gun grabber)
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To: neverdem

IBrp.


23 posted on 12/07/2007 6:42:19 PM PST by DuncanWaring (The Lord uses the good ones; the bad ones use the Lord.)
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To: Travis McGee
Duke Law Prof. Chemerinsky ducked his head in the sand during the Duke rape hoax. He's now headed to UC Irvine to be dean of the law school. Here's more on the coward:

"The ACLU of Southern California celebrates it's annual Bill of Rights Dinner on Friday, January 15, at the Regent Beverly Wilshire Hotel in an event to recognize the commitment of those who champion the ideals embodied in our nation's Bill of Rights.

Writer/director Steven Zaillian and civil rights attorney Constance Rice will be presented with Bill of Rights Awards and Professor Erwin Chemerinsky with the Eason Monroe Courageous Advocate Award."

--www.aclu-sc.org/News/Releases/1999/100154/

24 posted on 12/07/2007 6:43:17 PM PST by Ken H
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To: infidel29

The Bill of Rights does not state what citizens can do. Its states what governments CAN’T do.


25 posted on 12/07/2007 6:46:26 PM PST by fhayek
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To: neverdem

Bttt.


26 posted on 12/07/2007 6:48:02 PM PST by Inyo-Mono (If you don't want people to get your goat, don't tell them where it's tied.)
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To: neverdem

***Chemerisnky contends that the Second Amendment was meant only to “keep Congress from interfering with state militias.” ***

Not so. Before the Civil War the Second Ammendment was considered an INDIVIDUAL right.
In the Dred Scott decision Justice John Taney concluded that if “persons of the Negro race” were considered citizens they would have the same rights as others. The right to enter and leave states..the right to hold political meedtings...and THE RIGHT TO CARRY ARMS WHEREVER THEY WENT.

After the Civil war Blacks were freed and considered citizens. This required a new interpretation of the 2nd. and they then concluded that it was not an individual right but a “collective” right. Now they could pass laws to disarm blacks and Indians and place them back in second class citizenship.

When someone burns a cross on your lawn the best fire hose is an AK-47.


27 posted on 12/07/2007 6:54:29 PM PST by Ruy Dias de Bivar (Only infidel blood can quench Muslim thirst-- Abdul-Jalil Nazeer al-Karouri)
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To: Luke Skyfreeper
They will come to believe that the Constitution is merely a paper covering for arbitrary judicial rule.

There have been many 5 - 4 rulings over the decades that have caused me to "come to believe" that. The nation cannot survive a Democrat President appointing any more liberal activist justices (ie. Stephen Breyer) to the Supreme Court.

28 posted on 12/07/2007 7:02:52 PM PST by Lancey Howard
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To: neverdem

“reference both to a “right of the people” to arms, and its reference to the necessity of a well-regulated militia.”

Because neither involved the government. Unlike today with the failure of every level of government, our founding fathers did not want government in everything. They told us to keep it small.


29 posted on 12/07/2007 7:04:51 PM PST by edcoil (Reality doesn't say much - doesn't need too)
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To: fetal heart beats by 21st day
If one diagrams the amendment, the complete subject is:
“the right of the people to keep and bear arms”
and the complete predicate is:
“shall not be infringed.”
Simple subject: right


Exactly right. Or if looked at another way: the amendment states that the right of the people to bear arms shall not be infringed. Who gives a damn what the reason is? Whether its because militias need guns or individuals doesn't matter one bit. That's just fluff. The key of the sentence is "shall not be infringed." Period.
30 posted on 12/07/2007 7:13:36 PM PST by fr_freak
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To: neverdem
Here is what the New York Constitution that ratified the US Constitution said the Constitution meant about the right to bear arms (their italics):

That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State.

... Under these impressions and declaring that the rights aforesaid cannot be abridged or violated, and that the Explanations aforesaid are consistent with the said Constitution, And in confidence that the Amendments which shall have been proposed to the said Constitution will receive an early and mature Consideration: We the said Delegates, in the Name and in the behalf of the People of the State of New York Do by these presents Assent to and Ratify the said Constitution.

31 posted on 12/07/2007 7:19:59 PM PST by rustbucket
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To: rustbucket

Here is what the New York Constitution = Here is what the New York convention


32 posted on 12/07/2007 7:21:14 PM PST by rustbucket
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To: robomatik

Nice.

Now add a heat shield, a collapsable buttstock, and ghost ring sights.


33 posted on 12/07/2007 7:39:01 PM PST by mamelukesabre
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To: infidel29; rabscuttle385; neverdem; Luke Skyfreeper; goldstategop; fhayek; Ruy Dias de Bivar; ...
The only thing that puzzles me is that there people who are so obtuse that they refuse to consider that the Bill of Rights was enacted to protect the people. It wasn’t enacted to give rights to the Government. The founders saw and experienced the heavy hand of Government and wanted something to stand in the way of Government heavy handedness in the future. And to them, the people had rights, the Government had duties and limits.
34 posted on 12/07/2007 7:41:18 PM PST by Enterprise (Those who "betray us" also "Betray U.S." They're called DEMOCRATS!)
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To: mamelukesabre; robomatik
Now add a heat shield, a collapsable buttstock, and ghost ring sights.

And a 25 shell bandoleer to augment the sidesaddle shell carrier.
35 posted on 12/07/2007 7:44:39 PM PST by Dr.Zoidberg (Mohammedanism - Bringing you only the best of the 6th century for fourteen hundred years.)
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To: Enterprise

The only thing that puzzles me is that there people who are so obtuse that they refuse to consider that the Bill of Rights was enacted to protect the people.

That is an extremely important point. You should send a letter making that very point to the pro-2nd-amendment lawyers in this fight.

Who knows, it could be the very point that decides the battle.

The Bill of Rights was passed for the purpose of guaranteeing rights of the CITIZENS of the United States.

When you understand that simple, basic AND UNDENIABLE point, THEN IT MAKES ABSOLUTELY NO SENSE WHATSOEVER THAT THE SECOND AMENDMENT COULD POSSIBLY BE INTERPRETED IN ANY OTHER WAY THAN AS THE GUARANTEE OF THE RIGHTS OF INDIVIDUAL AMERICANS.

36 posted on 12/07/2007 7:52:52 PM PST by Luke Skyfreeper
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To: Dr.Zoidberg; robomatik

Ha! Don’t forget the SOG knife.


37 posted on 12/07/2007 7:56:18 PM PST by mamelukesabre
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To: goldstategop

But we’ve already agreed to ignore the Sixth Amendment for the sake of the war on terror. That also places our rights in jeopardy.

“Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.


38 posted on 12/07/2007 8:19:17 PM PST by onguard
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To: onguard

The War on Terror is not a “criminal prosecution”.


39 posted on 12/07/2007 8:45:10 PM PST by DuncanWaring (The Lord uses the good ones; the bad ones use the Lord.)
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To: mamelukesabre
That goes without saying. =-)
40 posted on 12/07/2007 9:23:49 PM PST by Dr.Zoidberg (Mohammedanism - Bringing you only the best of the 6th century for fourteen hundred years.)
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To: rustbucket
Ratification of the Constitution by the State of New York: July 26, 1788.[1]

Thanks for the quote. I wanted to find the link. I'm sick of the grabbers in NY. I had no say in where I was born.

41 posted on 12/07/2007 9:30:24 PM PST by neverdem (Call talk radio. We need a Constitutional Amendment for Congressional term limits. Let's Roll!)
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To: neverdem

The wording becomes utterly clear once we realize that, at the time, “militia” meant the entire male citizenry, bearing their own arms, and “well-regulated” meant “orderly” (Samuel Johnson’s dictionary treated the two as synonyms, and many writers referred to a well-regulated gentleman, or well-regulated tastes). “Orderly, armed, citizens being necessary to a free state, the right of the people to keep and bear arms” makes perfect sense.

Actually, and I’m not certain about this, but the term “well regulated” was more on the lines of meaning “good marksmen or proficient in the use of arms.”

So, let’s look at the wording again....

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

“A well regulated Militia” - Meaning the men (the militia being all citizens able to bear arms) in the community being well trained in the use of firearms.

“being necessary to the security of a free state” - Here I think “free state” is better understood as a free goverment or a government that respects freedom. So, “security” could be understood to mean keeping the government in check so as to maintain a “free” one (else why use the word “free”). The right of the people to keep and bear arms shall not be infringed.

My take then - “Armed citizens well trained in the use of weapons being necessary to ensure the security of free government (not tyranny), the right of the people (individuals) to keep and bear weapons shall not be infringed.”

There are plenty of writings extant from then that would indicate that many founders feared government tyranny. A society of armed/trained marksmen would be a preventative to government tyranny. Therefore, the right of the people not only to keep, but to bear arms was guaranteed.

I think the idea of service in an “organized” militia serving the state was not the main thrust of the ammendment. Keeping the citizenry armed was. IMO.


42 posted on 12/07/2007 9:32:41 PM PST by Sola Veritas (Trying to speak truth - not always with the best grammar or spelling)
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To: neverdem

excellent article


43 posted on 12/07/2007 9:32:44 PM PST by FreeInWV
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To: DuncanWaring

Agree. Only a lefty would want a WAR treated as a criminal prosecution. Oh wait that is exactly what the Democrats think and want and what got us 9/11. Wonder when War because criminal prosectution in our domestic courts. See if only War can become a criminal prosecution then we can pass a law against it and there will be war no more and peace in our time. Yeah Right.


44 posted on 12/07/2007 9:41:01 PM PST by therut
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To: Psychic Dice
"If the founders intended to disarm Americans"

Then we'd have called them Loyalists and sent them packing off to Canada with the rest of them and the list of names we'd call Founders would be somewhat different.

45 posted on 12/07/2007 9:43:39 PM PST by PeterFinn (Carry a gun since you cannot carry a cop.)
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To: neverdem

The current interpretation of “regulated” as government control versus the intent at the time to maintain functionality (regulate)
is a point I never read or hear.


46 posted on 12/08/2007 4:31:48 AM PST by School of Rational Thought (Truthism Watch)
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To: neverdem
“Armed citizens well trained in the use of weapons being necessary ... the right of the people (individuals) to keep and bear weapons shall not be infringed.”

There's a solution to "Mall shooters" in there somewhere.

47 posted on 12/08/2007 4:45:19 AM PST by LZ_Bayonet (There's Always Something.............And there's always something worse!)
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To: Ken H

Chemirinsky in charge of a law school is like Jeffrey Dahmer in charge of a cooking school.


48 posted on 12/08/2007 5:10:42 AM PST by Travis McGee (---www.EnemiesForeignAndDomestic.com---)
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To: Ken H

How appropriate. Shooting the messenger on a gun thread.


49 posted on 12/08/2007 6:39:07 AM PST by robertpaulsen
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To: Ruy Dias de Bivar
"In the Dred Scott decision Justice John Taney concluded that if “persons of the Negro race” were considered citizens they would have the same rights as others."

Close.

If they were considered Citizens of the state in which they lived, then they would have the same rights as other Citizens of that state, including the right to keep and bear arms, free speech, etc. The individual right to keep and bear arm is protected by state constitutions.

The bottom line in Dred Scott was that the states did not have the power to declare "persons of the Negro race" citizens -- that was a power reserved to the federal government. Meaning the newly freed slaves had no rights at all (and were treated that way).

The solution was the 14th amendment, which declared them "citizens of the United States" and protected some basic privileges and immunities.

50 posted on 12/08/2007 6:50:07 AM PST by robertpaulsen
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