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Judge rules Constitutionally guaranteed right to bear arms merely a privilege
St. Louis Gun Rights Examiner ^ | 30 September, 2011 | Kurt Hofmann

Posted on 10/01/2011 5:02:33 AM PDT by marktwain

A federal lawsuit filed in Texas last year seeks to repeal the prohibition, as part of the Gun Control Act of 1968, on handgun purchases by 18 to 20-year-olds from licensed dealers. That lawsuit has hit a snag, with U.S. District Judge Samuel Cummings dismissing it yesterday. From the Statesman:

In a 17-page order, U.S. District Judge Samuel Cummings dismissed a challenge to a 32-year-old [actually 42] federal law barring handgun sales by licensed gun dealers to people under the age of 21.

Judge Cummings' rationale is especially . . . interesting:

"The Court is of the opinion that the ban does not run afoul of the Second Amendment to the Constitution,” the ruling states. “The right to bear arms is enjoyed only by those not disqualified from the exercise of the Second Amendment rights.

But wait a second--"by those not disqualified from the exercise" of a Constitutional right? If the government can arbitrarily deem some citizens "unworthy" of a right, and "disqualify" them from it's exercise, how can it even be a right? What distinguishes it from a mere privilege, to be granted or denied at whim? If 18-year-olds are unworthy of the right (or privilege) of self-defense, who else might be so deemed some time in the future? He continues:

It is within the purview of Congress, not the courts, to weigh the relative policy considerations and to make decisions as to the age of the customer to whom those licensed by the federal government may sell handguns and handgun ammunition.

No, your honor--it is most definitely within the purview of the courts to rein in the legislature's unconstitutional excesses through judicial review. If you are unable or unwilling to do that, what good are you?

(Excerpt) Read more at examiner.com ...


TOPICS: Constitution/Conservatism; Crime/Corruption; Government; News/Current Events
KEYWORDS: arms; banglist; constitution; donttreadonme; gun; gunrights; guns; secondamendment; shallnotbeinfringed; waronliberty
This all flows from the insane FDR court ruling that all of commerce can be regulated by the federal government under the interstate commerce clause of the constitution.
1 posted on 10/01/2011 5:02:40 AM PDT by marktwain
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To: marktwain
It is within the purview of Congress, not the courts, to weigh the relative policy considerations and to make decisions as to the age of the customer to whom those licensed by the federal government may sell handguns and handgun ammunition.

Bad answer. The federal government may be permitted to restrict the age of adults who purchase alcohol, but only because drinking is not a constitutional right. Once a US citizen reaches age 18, restricting the individual right to keep and bear arms is beyond the scope of legitimate federal power. "Shall not be infringed" means that this right shall not be infringed (confusing for liberals, but if they read carefully, they will see that I am right).

2 posted on 10/01/2011 5:09:51 AM PDT by Pollster1 (Natural born citizen of the USA, with the birth certificate to prove it)
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To: marktwain
I wouldn't know where to begin, so maybe someone here knows ...

When and what was the reason, for the first restriction on the 2nd, to wit; .. a felon cannot own a firearm ... and simular restrictions.

3 posted on 10/01/2011 5:12:14 AM PDT by knarf (I say things that are true ... I have no proof ... but they're true)
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To: Pollster1
In other words, all of our rights exist only at the whim of the current batch of legislators. If the politicians decide to make our rights come and go as election cycles ebb and flow, then the concept of rights goes straight out the window.

Welcome to serfdom.

4 posted on 10/01/2011 5:13:44 AM PDT by ClearCase_guy (The USSR spent itself into bankruptcy and collapsed -- and aren't we on the same path now?)
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To: marktwain

I agree that the Interstate Commerce Clause has been used as a catch all that rarely makes sense to anyone other than the judges who use it.

The clause states that the United States Congress shall have power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress.


5 posted on 10/01/2011 5:15:09 AM PDT by apoliticalone (Honest govt. that operates in the interest of US sovereignty and the people, not global $$$)
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To: knarf
First restriction on 2nd Amendment was due to racism. The Democrats wanted to make sure that the negroes couldn't get guns. The white folks were worried about slave rebellions.

Nothing has changed.

6 posted on 10/01/2011 5:17:23 AM PDT by ClearCase_guy (The USSR spent itself into bankruptcy and collapsed -- and aren't we on the same path now?)
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To: marktwain

Sadly, in much of America, the RKBA is a privilege. The Heller and McDonald rulings have only laid the foundations in the battle to reclaim our rights. We can’t give Obama another 4 years to appoint more liberal judges.


7 posted on 10/01/2011 5:24:18 AM PDT by umgud
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To: Pollster1
Once a US citizen reaches age 18, restricting the individual right to keep and bear arms is beyond the scope of legitimate federal power

Actually the Militia Act of 1903 gives a mininum age of militia members of 17.

8 posted on 10/01/2011 5:27:18 AM PDT by Oztrich Boy (New gets old. Steampunk is always cool)
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To: marktwain

A Judge that does not understand that our Rights come from God our Creator and NOT government has no business being a judge.

This judge should be removed from the bench immediately.


9 posted on 10/01/2011 5:35:59 AM PDT by Sprite518
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To: umgud

On July 31, 1987, Cummings was nominated by President Ronald Reagan to a seat on the United States District Court for the Northern District of Texas


10 posted on 10/01/2011 5:37:21 AM PDT by MestaMachine (Wanna confuse obama? Ask him his REAL name.)
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To: marktwain

It also flows from the corrupt reading of Miller and Presser, by judges.


11 posted on 10/01/2011 5:38:51 AM PDT by Cboldt
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To: ClearCase_guy

Welcome to serfdom. Well said. Corrosion once begin -like the infringements upon the right to keep and bear arms tend to increase like any other behavior as encouraged. Simple physics. When I was in Panama the need for proper maintanence of our gear increased mold and rust could attach to any piece in a matter of just a few days one could readily see the effect of neglect. Same with our rights. This Judge is so used to the Constitution being a thing of wax in his/her/ its hands the entire written Constitution has been so corrupted by him/her/it— that they anticipate No credible resistance to their errant argument.Welcome to serfdom!


12 posted on 10/01/2011 5:40:10 AM PDT by StonyBurk (ring)
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To: ClearCase_guy
-- In other words, all of our rights exist only at the whim of the current batch of legislators. --

It's all about POWER. Rights exist to the extent people will fight for them, and are taken to the extent the government is willing to use its force.

13 posted on 10/01/2011 5:40:16 AM PDT by Cboldt
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To: marktwain

“The right to bear arms is enjoyed only by those not disqualified from the exercise of the Second Amendment rights.”

Say what? I just read it again, and the Second Amendment to the Constitution does not contain any phrase that starts with “except...”

It’s time to take back the country. Pitchin’ out activist judges with substandard reading skills is a good start.


14 posted on 10/01/2011 5:43:40 AM PDT by PubliusMM (RKBA; a matter of fact, not opinion. 01-20-2013: Change we can look forward to.)
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To: Cboldt
A quibble -- Rights come from God. They exist, and there is nothing any human can do about that.

The exercise of those rights is absolutely made possible only if people fight for them. If the government uses force, and the people do not, then we cannot exercise our rights.

But we still have them. They are inalienable.

15 posted on 10/01/2011 5:45:27 AM PDT by ClearCase_guy (The USSR spent itself into bankruptcy and collapsed -- and aren't we on the same path now?)
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To: PubliusMM

Why don’t we just IMPEACH these damn leftist Judges? IMHO it just takes a simple majority of the State Senate to do so.
I just don’t get the problem.


16 posted on 10/01/2011 5:48:45 AM PDT by Flintlock (Photo ID for all voters--let our dead rest in peace.)
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To: marktwain

We may all see the right to bear arms as an irrevocable right but those that run the media and run the country may not, and I’m not speaking D or R specifically.

If the “powers that be” ever wished to take away firearms from the people they would need to change public opinion first. How would they do that? A series of false flag events with subsequent media coverage would soon stigmatize owners of firearms as potential terrorists. Next they’d buy out and hijack the leadership in advocate organizations such as the NRA. If you don’t know it by now, we the public can be led around by the nose at the whim of the so-called “powers that be”.

http://en.wikipedia.org/wiki/The_powers_that_be_(phrase)


17 posted on 10/01/2011 5:50:08 AM PDT by apoliticalone (Honest govt. that operates in the interest of US sovereignty and the people, not global $$$)
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To: apoliticalone
Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress.

Yet a simple reading show the conjunction 'and', making it a bilateral function of the same power.

To regulate foreign commerce with the states and to regulate foreign commerce with the Indian tribes.

The problem, IMHO, is the interpretation of 'among the several States'. While originally I thought it was to regulate commerce State to State, I have since learned it is part of the taxation power....to direct foreign goods to the various ports of entry so each State gets a portion of the taxes.

-----

Mr. MADISON was surprised that any gentleman should return to the clauses which had already been discussed. He begged the gentleman to read the clauses which gave the power of exclusive legislation, and he might see that nothing could be done without the consent of the states. With respect to the supposed operation of what was denominated the sweeping clause, the gentleman, he said, was mistaken; for it only extended to the enumerated powers. Should Congress attempt to extend it to any power not enumerated, it would not be warranted by the clause. As to the restriction in the clause under consideration, it was a restraint on the exercise of a power expressly delegated to Congress; namely, that of regulating commerce with foreign nations.
U.S. Congressional Documents and Debates, 1774 – 1875 / Elliot's Debates, Volume 3, page 455

A direct consequence of this power of regulating commerce with foreign nations, and among the several states, is that of establishing ports; or such places of entry, lading, and unlading, as may be most convenient for the merchant on the one hand, and for the easy and effectual collection of the revenue from customs, on the other.
St. George Tucker, Blackstone's Commentaries

18 posted on 10/01/2011 5:58:21 AM PDT by MamaTexan (I am ~Person~ as created by the Law of Nature, not a 'person' as created by the laws of Man)
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To: ClearCase_guy
-- Rights come from God. They exist, and there is nothing any human can do about that. --

Here on earth, the ability to exercise rights is always a struggle, as you point out.

-- They are inalienable. --

That word, "inalienable," is often held as some talisman, almost "religious" significance. But really, it's just an adjective, like "blue" or "heavy."

Some things can be alienated. You can alienate your car, your house, your money, and pretty much any possession. Basically meaning you can transfer control over it (possession, the right to exclude, etc.) to somebody else. But it is simply impossible to transfer your life to somebody else - making life "inalienable."

When one reads the Declaration of Independence in that light, it doesn't lose any of its rhetorical power.

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. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

I don't know about you, but I am way past "consent of the governed." I give the government the same legitimacy as I give the mafia. The government is dishonest, it is corrupt, it has vastly exceeded the powers granted to it, and it maintains control by brute force. While the government does exercise some "just powers," in the balance, it is and has been destructive of the things that made the US a good and strong country.

19 posted on 10/01/2011 5:59:55 AM PDT by Cboldt
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To: Pollster1

Right. How does a “right” morph into a priviledge? Only Marxists can say what is really white is black.


20 posted on 10/01/2011 6:03:30 AM PDT by dools007
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To: knarf
When and what was the reason, for the first restriction on the 2nd, to wit; .. a felon cannot own a firearm ... and similar restrictions.

Many of these restrictions come from Title I of the Gun Control Act of 1968, which you can find under 18 U.S.C. - Section 922, which governs who can't own firearms as well as restrictions on their manufacture and sale. This law also determines the age of the buyer.

There are parts of this law that are overreaching, but we realistically do need some regulations on the purchase, transfer, manufacture, and ownership of arms. I'm not particularly crazy about the idea of a 14-year-old gang member purchasing a fully automatic Uzi or jihadis openly carrying RPGs on planes.

Someone here said that this not the job of the legislative branch, and I would partly disagree. The interpretation of the Second Amendment is clearly a function of the courts, but do we really want the least democratic branch determining all the boundaries? The courts really aren't capable of doing that, and it would be scary if they tried.

21 posted on 10/01/2011 6:06:21 AM PDT by ElectronVolt
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To: marktwain; All
Interesting article and comments here at the source. Thanks for posting.

When law and force keep a person within the bounds of justice, they impose nothing but a mere negation. They oblige him only to abstain from harming others. They violate neither his personality, his liberty, nor his property. They safeguard all of these. They are defensive; they defend equally the rights of all.

The harmlessness of the mission performed by law and lawful defense is self-evident; the usefulness is obvious; and the legitimacy cannot be disputed.

It must be admitted that the tendency of the human race toward liberty is largely thwarted. This is greatly due to a fatal desire — learned from the teachings of antiquity — that our writers on public affairs have in common: They desire to set themselves above mankind in order to arrange, organize, and regulate it according to their fancy.

Usually, however, these gentlemen — the reformers, the legislators, and the writers on public affairs — do not desire to impose direct despotism upon mankind. Oh no, they are too moderate and philanthropic for such direct action. Instead, they turn to the law for this despotism, this absolutism, this omnipotence. They desire only to make the laws.

Every individual has the right to use force for lawful self-defense. It is for this reason that the collective force — which is only the organized combination of the individual forces — may lawfully be used for the same purpose; and it cannot be used legitimately for any other purpose.

Law is solely the organization of the individual right of self-defense which existed before law was formalized. Law is justice.

The mission of the law is not to oppress persons and plunder them of their property, even though the law may be acting in a philanthropic spirit. Its mission is to protect persons and property.

Furthermore, it must not be said that the law may be philanthropic if, in the process, it refrains from oppressing persons and plundering them of their property; this would be a contradiction. The law cannot avoid having an effect upon persons and property; and if the law acts in any manner except to protect them, its actions then necessarily violate the liberty of persons and their right to own property.

The law is justice — simple and clear, precise and bounded. Every eye can see it, and every mind can grasp it; for justice is measurable, immutable, and unchangeable. Justice is neither more than this nor less than this. If you exceed this proper limit — if you attempt to make the law religious, fraternal, equalizing, philanthropic, industrial, literary, or artistic — you will then be lost in an uncharted territory, in vagueness and uncertainty, in a forced utopia or, even worse, in a multitude of utopias, each striving to seize the law and impose it upon you. This is true because fraternity and philanthropy, unlike justice, do not have precise limits. Once started, where will you stop? And where will the law stop itself?

Frederic Bastiat 1801-1850

22 posted on 10/01/2011 6:09:39 AM PDT by PGalt
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To: Oztrich Boy
Yes and when I was eighteen, old enough to be drafted, I wasn't, I volunteered, you could drink. The stupid drinking law needs to be repealed and that will remove the judge fig leaf.
23 posted on 10/01/2011 6:23:19 AM PDT by org.whodat (Just another heartless American, hated by Perry and his fellow democrats.)
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To: MamaTexan
While originally I thought it was to regulate commerce State to State, I have since learned it is part of the taxation power

All this reminds me of United States v. Lopez. In 1992, 12th grade student Alfonso López brought a .38 to school and was charged with a violation of the federal Gun-Free School Zones Act of 1990. The case made its way to the Supreme Court, and the government argued that this law was necessary because bringing guns to schools affected general economic conditions. Thank God the Court got this one right and rejected the government's case because such an argument would allow it to regulate anything because everything has an economic effect.

24 posted on 10/01/2011 6:23:24 AM PDT by ElectronVolt
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To: marktwain
But wait a second--"by those not disqualified from the exercise" of a Constitutional right? If the government can arbitrarily deem some citizens "unworthy" of a right, and "disqualify" them from it's exercise, how can it even be a right? What distinguishes it from a mere privilege, to be granted or denied at whim?

By that logic then it is unconstitutional to prohibit convicted felons from voting or owning firearms.

25 posted on 10/01/2011 6:29:56 AM PDT by Yo-Yo (Is the /sarc tag really necessary?)
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To: Cboldt

Concur


26 posted on 10/01/2011 6:31:57 AM PDT by ClearCase_guy (The USSR spent itself into bankruptcy and collapsed -- and aren't we on the same path now?)
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To: marktwain
If 18-year-olds are unworthy of the right (or privilege) of self-defense, who else might be so deemed some time in the future?

How about the mentally unfit? Felons convicted of a violent crimes and certain other crimes? Five year olds?

27 posted on 10/01/2011 6:36:12 AM PDT by SoJoCo
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To: SoJoCo

Agreed. I have an autistic child, and I don’t even let him see my firearms.

I am glad he has expressed no interest in firearms.

Had he grown up “normal”, we would be out shooting now, but that’s just not in the works.

I also deal regularly with “people” that if they had unrestricted access to fully automatic weapons, that would not hesitate to use them and innocent bystanders be damned.


28 posted on 10/01/2011 6:48:23 AM PDT by Molon Labbie
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To: ElectronVolt
Thank God the Court got this one right and rejected the government's case because such an argument would allow it to regulate anything because everything has an economic effect.

Yep. Joseph Story said pretty much the same thing.

A regulation of one may injuriously or beneficially affect the other. But that is not the point in controversy. It is, whether congress has a right to regulate that, which is not committed to it, under a power, which is committed to it, simply because there is, or may be an intimate connexion between the powers. If this were admitted, the enumeration of the powers of congress would be wholly unnecessary and nugatory. Agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of congress would embrace the widest extent of legislative functions, to the utter demolition of all constitutional boundaries between the state and national governments.
Joseph Story, Commentaries on the Constitution

-----

Hard to believe that less than 20 years later, ANY judge thinks the inalienable Right to Keep and Bear Arms is a 'privilege'.

29 posted on 10/01/2011 6:56:59 AM PDT by MamaTexan (I am ~Person~ as created by the Law of Nature, not a 'person' as created by the laws of Man)
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To: MamaTexan

This judge should retire and be quick about it.


30 posted on 10/01/2011 7:00:22 AM PDT by Eric in the Ozarks
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To: Cboldt
But really, it's just an adjective, like "blue" or "heavy."

Actually, it's a legal term meaning 'non transferable'.

It's what they've done. They've used licensing [legal definition; governmental permission] in order to 'legally' carry a firearm.

Once you've gotten that permission, you've become legally obligated to follow their rules.

It's how they turn a Right into a privilege.

----

For a real eye opener, try Invisible Contracts by George Mercier

31 posted on 10/01/2011 7:09:48 AM PDT by MamaTexan (I am ~Person~ as created by the Law of Nature, not a 'person' as created by the laws of Man)
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To: Eric in the Ozarks
This judge should retire and be quick about it.

Agreed! :-)

32 posted on 10/01/2011 7:12:01 AM PDT by MamaTexan (I am ~Person~ as created by the Law of Nature, not a 'person' as created by the laws of Man)
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To: marktwain
Sorry, but this is legal hogwash. The government certainly restrict certain Constitutional rights.

Felons are not allowed to possess firearms. Freedom of Speech does not allow the screaming of “Fire” in a crowded theater. Freedom of the Press does not permit libel or slander. Freedom of Assembly does not allow unrestricted gatherings without parade permits. The second amendment does not allow the possession of a 25mm fully automatic weapon... and of course there are many more examples.

33 posted on 10/01/2011 7:12:07 AM PDT by MindBender26 (Forget AMEX. Remember your Glock 27: Never Leave Home Without It!)
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To: marktwain

It reads “the right of the people to keep and bear Arms, shall not be infringed’. So the Government cannot infringe on our natural right to keep and bear arms!


34 posted on 10/01/2011 7:12:57 AM PDT by Lockbox (`)
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To: MamaTexan
-- Actually, it's a legal term meaning 'non transferable'. --

Yes, I know. But it's also an adjective. My point was that "inalienable" isn't some high-falutin' principle.

-- [Licensing is] how they turn a Right into a privilege. --

That's one of the tools in the toolbox. They also use subterfuge, blatant and open dishonesty, and violence.

-- Once you've gotten that permission, you've become legally obligated to follow their rules. --

"Legally obligated" is intended to create a guilt-trip for those who are conflicted between independent minded and law-abiding; and feeble justification for the corrupt legislators, judges, and law enforcement.

Judges don't hold themselves to be legally obligated to adhere to binding precedent (see blatant misuse of Presser and Miller), proving that the phrase "legally obligated" is little more than cover for the illegitimate use of violence by the government.

35 posted on 10/01/2011 7:27:24 AM PDT by Cboldt
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To: Cboldt
"Legally obligated" is intended to create a guilt-trip for those who are conflicted between independent minded and law-abiding; and feeble justification for the corrupt legislators, judges, and law enforcement.

Well said..... and your right.

"Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law,' because law is often but the tyrant's will, and always so when it violates the right of an individual."
--Thomas Jefferson to Isaac H. Tiffany, 1819.

36 posted on 10/01/2011 7:35:55 AM PDT by MamaTexan (I am ~Person~ as created by the Law of Nature, not a 'person' as created by the laws of Man)
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To: knarf

The original definition of ‘felon’ was someone convicted of a crime punishable by death or forfeiture of land (pretty much the same thing back then). The King was doing you a favor by letting you live, so you had no right to complain about how you were treated. The problem is that the original definition has been so watered down that practically anything can be a felony, but the loss of rights remains.


37 posted on 10/01/2011 8:32:10 AM PDT by Mountain Troll (My investment plan - Canned food and shotguns)
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To: marktwain

bfl


38 posted on 10/01/2011 9:44:36 AM PDT by tutstar
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To: Yo-Yo

>By that logic then it is unconstitutional to prohibit convicted felons from voting or owning firearms.

It is, especially because what you are referring to as ‘felons’ would more properly be termed ‘ex-felons’ for they have served their sentence.
The abridgment of those rights is nothing less than the creation of a second class of citizen... one who has no say in government and little power to fight it.


39 posted on 10/01/2011 11:44:41 AM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: marktwain

“This all flows from the insane FDR court ruling that all of commerce can be regulated by the federal government under the interstate commerce clause of the constitution.”

Not even commerce there was no buying or selling of wheat on Roscoe Filburn’s farm. Basically the Federal employee deemed ANYTHING and EVERYTHING not only commence but interstate commence.

Rending the clause and the constitution to which it is attached utterly meaningless. This is why it is correct to refer to federal employees in black robes as injustices and usurpers not justices.


40 posted on 10/01/2011 4:00:39 PM PDT by Monorprise
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To: Molon Labbie
I also deal regularly with “people” that if they had unrestricted access to fully automatic weapons, that would not hesitate to use them and innocent bystanders be damned.

Care to clarify? I wouldn't hesitate to "use" autos if I had unfettered access...nad a boatload of cash, but safety rules would still apply. Recently, a friend and I went to a local shootin' spot...informal...and there was a truck there. We drove another hundred yards because we wanted to run our dogs. Sittin' there we hear shots cracking. So, I get out to investigate. Sounded like .22, but loud enough that it was being fired in our direction. Walked toward it...up high and to the right, and heard ricochets. Get down there, and some dimwit has his kids shooting at water. I yelled "That's not a safe direction to shoot." and he responds "Why? What's down there?" Anyway, his rationale for being a flaming dipshit turned out to be 1. he was there first, and 2. he was in the Army for 25 years. I know better than to try to reason with that kind of 'tard, so I walked off.

41 posted on 10/01/2011 4:28:07 PM PDT by gundog (Help us, Nairobi-Wan Kenobi...you're our only hope.)
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To: SoJoCo
How about the mentally unfit? Felons convicted of a violent crimes and certain other crimes? Five year olds?

All free people have the right to keep and bear arms. The Constitution makes very clear that not all people are free. Children are not free until either adulthood or emancipation. Convicted felons become slaves of the state--explicitly permissible under the Thirteenth Amendment. The Constitution does not particularly talk about other ways in which persons may be adjudicated incompetent, but I'm pretty sure that it was pretty well established in common law that there were ways in which people could legitimately be branded incompetent and become subjects of their caretakers.

42 posted on 10/02/2011 11:33:50 AM PDT by supercat (Barry Soetoro == Bravo Sierra)
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