Posted on 01/10/2013 7:14:20 AM PST by SeekAndFind
IIUC, there were 'traditions', though not legalistic in the sense above.
One such would be the family taking responsibility for, say, the mentally retarded.
If such reasonable restrictions have long been the practice, then it would seem rather daunting to now claim they are all suddenly unconstitutional, right?
No; your understanding is tainted with a Statist worldview*: just because family or doctors prevented one from bearing weapons does not mean government had any involvement -- remember that the Constitution binds government from actions, not "the people."
* -- In particular Fascism, which had a slogan: "Everything in the State, nothing outside the State, nothing against the State"
Yes, it was -- this because the only reason to hide weapons was to engage in unsavory business, as all law abiding citizens could and did carry openly -- see New Mexico's State Constitution (Art II, Sec 6) as an example.
That was, of course, before the demonetization of guns and the falling out of everyday carry by citizens.
You have no clue what my "understanding" is, or is not, "tainted with", but immediately jump to your all-purpose knee-jerk accusation -- "Statist" -- apparently because it's useful whenever you have nothing of real value to contribute.
I simply asked a question, basically: in the entire history of the Republic, was the Federal Constitution ever used to strike down state and local ordinances restricting guns?
If not, how are you going to suddenly invent a new "constitutional right" that was never recognized before?
And what exactly is that right, in your mind?
Can any one (criminal? lunatic? non-citizen?) lawfully carry any weapon, any time, any where, with no restrictions?
Or might certain restrictions apply under certain circumstances, as defined by local authorities?
Iis there any portion of human life where government authority should not touch? (Or is there nothing outside the state?)
I would submit that the right to defend one's life is one such item that should be outside the state [and "local authorities"].
Does "certain restrictions" include some agreement such as a gun-check, where the "local authority" assumes accountability/responsibility for your safety and property?
There are problems with this question:
* -- as in a previous posts, open-carry was once extraordinarily common, and even young boys carrying rifles around did not spark the reactions they do today. For more/better information, ask some of the older Freepers (I'm only 30) and they'll tell you. (Especially interesting are stories about carrying even to [public] schools, as compared to today's 'no tolerance' policies.)
Wrong on all counts.
First, Article VI is defined by the “pursuance thereof” phrase. ONLY the laws “in pursuance thereof” are the Supreme Law of the land. Might want to check your facts friend. Also, the Supreme Court is NOT the final arbiter, again, you might want to check the 9th and 10th Amendment. Marshall claiming judicial review does not make it sacrosanct. Geeez!
Second, We the People in the aggregate did NOT ratify the Constitution...might want to check that out as well. Maybe you should start with tiny Rhode Island and look at how they ratified the Constitution. You’ll see it wasn’t in the aggregate. Answer this, who created the federal government, the People of the States? Hmmm...why would I ask that now?
Keep bowing at the alter of DC. As for me, I’ll be working with the States to force the “men of mischief” back into the “chains of the Constitution.” If that fails, then the unalienable right to free association is next...hint, that means secession. I’ll let you keep focus on DC. Good luck.
I guess if you are good, you may be permitted internet access from your asylum or prison, perhaps with supervision.
Freep me to tell me how it is going.
Thank you.
"Incorporation" is the word I was looking for, though I didn't know it, did suspect something changed, not sure what.
It turns out, if I look up "Incorporation of the Bill of Rights", there's a whole lesson in history I knew nothing about.
For one thing, the Supremes authority comes from the 14th Amendment "due process clause".
Can you even imagine just when "incorporation" of the Second Amendment took place?
It's incredible! McDonald versus Chicago, 2010.
In its decision, the Supreme Court (5-4) ruled, for the first time, that the Second Amendment applies not only to the Federal Government, but also to state and local governments.
Yes, in the earlier (2008) District of Columbia versus Heller case, the Supremes struck down DC's most restrictive anti-gun regulations, but did not address the question of "Incorporation".
Indeed, previous Supreme Court decisions (i.e., US v Cruikshank (1876), Presser v Illinois (1886), Miller v Texas (1894)), specifically did not "Incorporate" the Second Amendment.
And Robertson v. Baldwin (1897) the Court even opined:
"In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed.
Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation;
"the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons"
Point is, it was not until 2010 that the Supreme Court first "Incorporated" the Second Amendment, making it also apply to state and local governments.
Still, so far as I know, the Supremes have never forbidden reasonable local restrictions on the Second Amendment "right to keep and bear arms."
Not to forget Nunn v. State (1846), another case cited by the majority in Heller in which the Georgia Supreme Court held that a law prohibiting carrying certain weapons secretly was valid under the Second Amendment as it did not “deprive the citizen of his natural right of self-defense, or of his constitutional right to keep and bear arms.”
In Heller, the Supreme Court held that the Second Amendment’s definition of “bear arms” included an individual’s right to a gun “carried ... upon the person or in the clothing or in a pocket.” The decision, however, also notes that the scope of the Second Amendment is not unlimited, that it is “not a right to keep a weapon whatsoever in any manner whatsoever and for whatever purpose.” It also acknowledged that courts long have “held that prohibitions on carrying concealed weapons were lawful under the Second Amendment and state analogues.”
Though I prefer as broad a definition as possible I recognize the reality that the right is not unlimited.
The 2nd Amendment incorporation was not needed (or perhaps even possible) for Heller because that case was in the District of Columbia.
The 2nd Amendment guys are doing the same thing that the pro civil rights (Thurgood Marshall et al.) did with their pet cause: you pick out one doctrine at a time, set up a test case and win it. That nudges the law in your direction. Heller was a great case because you had a security guard who was required to have a gun at work protecting other people, and it was hard to make the case that he couldn’t have a gun at home to protect himself.
McDonald took that result and applied it to the state. The state was Illinois.
I suggest the next case would one asking for mandatory reciprocity (like with marriages and drivers licenses) for concealed carry permits. A great case would have a well trained Vermont police officer who wants to visit his mother in say, New Jersey, while armed, and crossing New York, Mass, and CT. Self defense is a right, even for people out of state, and particularly so when they are alone yet on legitimate business. Just as the 14th Amendment forbids removal of P or I from citizens, Article 4 requires states to give people outside their state P and I just as they give people inside their state.
After that, perhaps we go after the big guns, and assert that the Letters of Marque and Reprisal clause permits our privateer company to own crew served weapons as we cruise the coast line of Somalia protecing local ships from pirates, and charging our customers for use of our assorted weapons...
and who decides what is ‘in pursuance thereof’?
If there is a controversy between the states, or between the federal government and a state, it is brought to the supreme court to resolve, as its original jurisdiction. That means SCOTUS decides on the facts and law of the case.
Or, if the state has no case, as SC had no case in 1860, they could just start shooting. Poor South Carolina, too small to be a nation, too large to be an asylum.
But we did ratify the constitution, using the bodies that existed at that time. Some states did it with the aid of advisory referenda, some by legislative act. Whatever the means, they ratified it for their state, and those who voted against it were brought along despite their vote against it. Such is the nature of representative democracy.
Presidents are routinely elected with less than 50% of the voters showing up and voting for them, and the electors selected occasionally go their own way, despite all the rules to the contrary.
Government is a messy thing.
bttt
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