Rewrite the Second Amendment?

Magic City Morning Star ^ | Jun 2, 2004 | Richard D. Skidmore

[William Tell]

robertpaulsen said: "As I posted the cases to you, it is well known that the Ninth Circuit 1) considers the second amendment binding only on the federal government, and 2) does not create an individual right. Now, given those two basic known facts, you can see how this wasn't a second amendment case.

Whether the Second Amendment "creates" a right or not is irrelevant to whether there is a right that is protected.

Here is what I believe:

Truth: The right to keep and bear arms is an individual, unalienable right which is a consequence of the right to life.

Truth: The Second Amendment refers to an individual right to keep and bear arms, not to a "collective right".

Truth: The individual right to keep and bear arms is referred to in the Dred Scott case as being among the privileges and immunities of a free person, without reference to state of residence.

Truth: The Miller decision remanded the case to lower courts on the sole issue of whether a short-barreled shotgun was useful to a militia and did not challenge Miller's right to possess such a weapon if it did have such usefulness.

Your assessment of these items would be useful since you often seem to quote legal cases to establish law without reference to judicial error.

Anti-gunners are forced to subscribe to different theories to accomplish disarmament and they would be much less successful if they were required to be consistent. Instead, when a judge will buy the ridiculous "collective rights" nonsense, then that is what they use. Otherwise, they find themselves dependent upon the notion that a "right to keep and bear arms" can exist but that states can be free to infringe it.

The Supreme Court cannot support gun control with a decision because any decision they might make would likely invalidate gun laws in half the states of the Union.

[Fiddlstix]

BTTT

[robertpaulsen]

(The Supreme Court cannot support gun control abortion with a decision because any decision they might make would likely invalidate gun abortion laws in half the states of the Union.) Hmmmmm.

Even IF the Second Amendment refers to an individual right to keep and bear arms, it still only applies to federal law. Silveira v. Lockyer involved state law, and the second amendment does not apply to state law.

I guess I'd better stop citing actual cases to you since all you do is shrug them off as "judicial error". Why do I bother?

From now on, let's just discuss how we "feel" about an issue. Wouldn't that be fun?

[William Tell]

robertpaulsen said: "Even IF the Second Amendment refers to an individual right to keep and bear arms, it still only applies to federal law. Silveira v. Lockyer involved state law, and the second amendment does not apply to state law. "

You have once again failed to respond to the critical few facts, which I enumerated, which would help one understand what you are saying.

With this response you fail to address how it was possible for the US Supreme Court to refer to the right to keep and bear arms as one of the privileges and immunities of a free person in the Dred Scott decision. They did not say that Dred Scott would only be immune from federal infringement, they said he would be able to carry a gun wherever he went.

You also use "Even IF the Second Amendment refers to an individual right", confirming my suspicion that you are among those who depend upon the mutually inconsistent body of judicial error which supports the disarmament of Americans.

[tpaine]

William Tell:
"Does this not obligate the Ninth Circuit to similarly recognize the individual right referred to in the Second Amendment?"

Not at all. This wasn't a second amendment case -- this was a state of California law which did not violate the California or the federal constitutions.

Bold 'begging the question' idiocy. The Calif 'law' clearly infringes on my US Constitutional right to buy/own an 'assault' styled rifle.

The Ninth ruled correctly in that sense.

Only in the opinions of gun-grabbers, paulsen.

As I posted the cases to you, it is well known that the Ninth Circuit 1) considers the second amendment binding only on the federal government, and 2) does not create an individual right.
Now, given those two basic known facts, you can see how this wasn't a second amendment case.

Neither of your facts leads to that conclusion. The 2nd is part of our 'Law of the Land', which Calif officals & lawmakers are sworn to uphold. - They are violating the 2nd. Case closed, except to pettifogging gun-grabbers.

However, that didn't stop Judge Reinhardt from taking the opportunity to bitch-slap the Fifth Circuit. And boy, did he. He carried on about "collective right", and militias, and Miller, and on and on. Had nothing to do with Silveira v. Lockyer -- it just gave him the opportunity to present the liberal side of gun rights. Here's an excellent article on the case.

Do you know Dave Kopel, paulsen? He is an prime example of the appeasement oriented american gun 'expert', the type who has lead us down the primrose path since 1934.
He can rationalize away most any gun restriction, in his 'wait till next year' philosophy of 'winning'. -- Hell, in one sense he seems to have built a pretty good career around being a professional dupe for the anti-gun movement.

[tpaine]

From now on, let's just discuss how we "feel" about an issue. Wouldn't that be fun?

The Supreme Court cannot support gun control abortion with a decision because any decision they might make would likely invalidate gun abortion laws in half the states of the Union.) Hmmmmm.

Bizarre ~hmmmm~ indeed, paulsen.
Once again you've hoisted yourself up as the fool.

[neverdem]

When Thomas Jefferson was compiling the BOR in 1789, an amendment (one of about 200) was submitted by one of the states applying the federal BOR to the states. He rejected this particular amendment. That was according to Mr. Paulsen.

According to my Encyclopedia Americana, Copyright 1970, Vol. 7, P. 663, on the "Constitution of the United States", subsection "The Bill of Rights", it states that "When the first Congress convened, it was flooded with some 145 proposed amendments. This number was reduced to 12, which on Sept. 25, 1789, were sent to the states for consideration.

This link says Jefferson left France on Sep 28, 1789, arriving in Norfolk, VA on Nov 23, 1789.

I think there's a conflict about Jefferson's compiling of the BOR.

[Congressman Billybob]

Anyone who says that "Thomas Jefferson compiled the Bill of Rights" is an historical moron. Jefferson WAS in France, as you correctly point out. Also, the Encyclopedia reference you quote is also in error, though not as badly.

I laid out the whole process in my Introduction to the reprint of Robert Yates' Secret Proceedings and Debates of the Convention to Form the US Constitution. Here's the short form of that long Introduction.

The states, in their ratifying conventions concerning the Constitution, demanded various rights be guaranteed by immediate amendments to the Constitution. Over 200 of these requests were received. North Carolina went so far as to refuse to act on ratification, until a Bill of Rights was adopted. The most common single request/demand was for a guarantee of freedom of the press.

James Madison, then a member of the First Congress (under the Constitution as ratified by 11 states at the time) was given the task of drafting the Bill of Rights from those 200+ demands. He wrote 17 Articles, which were passed by the House by the required 2/3rds vote. Of those, 12 passed the Senate and were sent to the states for ratification.

Of those 12, items 3 through 12 were adopted by the states, becoming what are commonly known as the Bill of Rights. (What is now the 1st Amendment was originally the 3rd Amendment, and so on.) The original 2nd Amendment was not finally ratified and became part of the Constitution until 1992.

And that is the honest and accurate history of the drafting and ratification of the Bill of Rights.

John / Billybob

[robertpaulsen]

My error. I meant to say Madison.

"His mentor and close friend Thomas Jefferson chided him: “A bill or rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference” (Letter to James Madison, July 31, 1788). Accordingly, Madison assured the Virginia ratifying convention that he would work for rights amendments after the Constitution took effect. He kept his word. Within a month of being elected to the first Congress, Madison began drafting a Bill of Rights. He winnowed over two hundred amendments proposed by the state ratifying conventions down to nineteen amendments. The Congress approved only twelve. Among the ones it rejected was an amendment that would have made the Bill of Rights applicable to the state governments as well as the national."

The underlined was the only point I was trying to make.

And, Congressman Billybob, perhaps you can correct the other historical morons who insist that the first eight amendments of the BOR, when written, applied to the states as well as the federal government? (Since you seem to be in the "historical moron correcting" kind of mood.)

[robertpaulsen]

"they said he would be able to carry a gun wherever he went"

I'm white and I can't do that.

Does federal law prevent me? No, state laws prevent me.

My guess is that the P&I to which the court was referring dealt with the P&I of each state.

"Neither does it apply to a person who, being the citizen of a State, migrates to another State. For then he becomes subject to the laws of the State in which he lives, and he is no longer a citizen of the State from which he removed. And the State in which he resides may then, unquestionably, determine his status or condition, and place him among the class of persons who are not recognized as citizens, but belong to an inferior and subject race; and may deny him the privileges and immunities enjoyed by its citizens."

"But if he ranks as a citizen in the State to which he belongs, within the meaning of the Constitution of the United States, then, whenever he goes into another State, the Constitution clothes him, as to the rights of person, with all the privileges and immunities which belong to citizens of the State (not the United States -rp)."
-- DredScott case. The Opinion of the Court: Mr. Chief Justice Taney

[robertpaulsen]

"The Calif 'law' clearly infringes on my US Constitutional right ..."

The US Constitution grants you a right?

[tpaine]

This wasn't a second amendment case -- this was a state of California law which did not violate the California or the federal constitutions.

Bold 'begging the question' idiocy.
The Calif 'law' clearly infringes on my US Constitutional right to buy/own an 'assault' styled rifle.

The US Constitution grants you a right?

Dumb question, paulsen, As you well know, our Constitution only enumerates some of our rights, not all.

Why do you feel compelled to show your idiocy with posts like that, paulsen? - Are you masochistic?

[tpaine]

-- Among the ones it rejected was an amendment that would have made the Bill of Rights applicable to the state governments as well as the national."
The underlined was the only point I was trying to make.

Which you have failed to make, as the point is redundant, given the supreme "Law of the Land". [see Art VI]

And, Congressman Billybob, perhaps you can correct the other historical morons who insist that the first eight amendments of the BOR, when written, applied to the states as well as the federal government? (Since you seem to be in the "historical moron correcting" kind of mood.)

I doubt that B-bob will respond on point, as he has appeared unwilling in the past to defend our Constitutions supremacy clause. -- That clause seems to give a lot of lawyerly types problems.

I've long surmised that this may be due to the fact that if the clear words of our BOR's/Constitution were followed, it would throw many of them out of work.

[Wurlitzer]

"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."

Even if we were to change this to read:

"Guns are bad, they kill people, the right of the people to keep and bear arms, shall not be infringed." has exactly the same meaning when it comes to our rights. The first part of the phrase in no way modifies the second part.

[robertpaulsen]

You said that you have a "US Constitutional right to buy/own an 'assault' styled rifle." Where does the US Constitution give you that right?

Maybe you meant that you have a "US Constitutionally protected right to buy/own an 'assault' styled rifle"?

Well, no, because your state defines the types of arms you may or may not have, not the US Constitution under the second amendment.

So, I don't know what the heck you're talking about.

[robertpaulsen]

Seems to me that the second amendment is stating, "The right of the people of a state to keep and bear arms shall not be infringed by Congress, since the people form the state militia, and a well regulated militia is necessary to the security of a free state."

To me, that's very different from your, "The right of the people to keep and bear arms shall not be infringed."

[William Tell]

robertpaulsen said: "My guess is that the P&I to which the court was referring dealt with the P&I of each state."

Perhaps.

Here is the quote from the decision:
It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. A reasonable person might attach to the reference to "keep and bear arms" the same limitation expressed in the phrase "upon all subjects upon which its own citizens might speak" but such a limitation is not explicit.

Here now is is the relevant portion of the Fourteenth Amendment:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; To suggest that the "immunities" of citizens of the United States do not include protection from infringement of the right to keep and bear arms is to ignore the Second Amendment. Your "Even if" in a posting above has allowed you to remain non-committal with respect to this very important part of the Bill of Rights.

IF there is an individual right to keep and bear arms, as referred to in the Second Amendment, and IF citizens of the United States are immune to federal infringement of such right, and IF such immunity is among the "privileges and immunities" referred to in the Fourteenth Amendment, THEN why does my right to keep and bear arms depend in any way on the Constitution of California?

[RKV]

I am not suprised you should misquote Dred Scott - here is what else Chief Justice Taney had to say "...For if they [blacks] were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went." Taney actually said exactly the OPPOSITE of what your partial and out of context excerpt implies, since the right to bear arms is a Federal right and the states are under obligation to respect the supremacy of the Federal Constitution. Notwithstanding the efforts of many judges to twist the evident and clearly stated meaning of the Constitution, and the existence of a number of cases which are in ERROR, the BOR applies to the states, as it did before the 14th Amendment, and surely after.

[tpaine]

robertpaulsen wrote:

You said that you have a "US Constitutional right to buy/own an 'assault' styled rifle." Where does the US Constitution give you that right?

That right is enumerated in the 2nd. It is an inherent, inalienable right, incapable of being either taken or 'given', - just violated.

Maybe you meant that you have a "US Constitutionally protected right to buy/own an 'assault' styled rifle"? Well, no, because your state defines the types of arms you may or may not have, not the US Constitution under the second amendment.

That's what you claim, over & over, begging the question in your idiocy.

So, I don't know what the heck you're talking about.

Your mental problems don't interest me paulsen. Call someone who cares.