GUNS AND THE CONSTITUTION:Telling The Right Second Amendment Story (BARF ALERT)

Findlaw.com (sic) ^ | 11/2/2001 | Akhil Reed Amar and Vikram David Amar

[Destructor]

"These morons also ignore the usage of "the people" in the First, Fourth and Ninth Amendments. In each case it preserves or reserves the rights of individual persons."

Oh, they didn't ignore the usage at all. First they need to establish a new precedent into law, then they can apply it to the rest of the Bill of Rights!!!

[VRWC_Member428]

Author: Akhil Reed Amar and Vikram David Amar

Hmmm. Hello, FBI? I think I found a couple more terrorists...

[dasboot]

Well, I follow you; but I would add that it is the Feds' business to decide whether a breach of those right occurred. The 5th C decision was initiated by the suit of the defendant who alledged a violation per Lautenburg. I vigorously agree with the defendant's position.

I would also add that the Fed Courts have been remiss in their duty to defend that same BOR , generally: chosing to defer to the States rather than to intervene where they should have, when patently dubious state legislation interferes with rights guaranteed by the Fed charter.

[sailor4321]

Why does the ammendment bring up the militia? If the framers wanted an unlimited individual right to bear arms why did they include that at all?

In order to enable a militia. You can have armed citizens and no militia, but you can't have a militia (comprised of all the people) without armed citizens.

[sailor4321]

These guys haven't got a clue. Well, actually, they do. They understand their anti-gun viewpoint has been dealt a severe blow and they are doing their best (which isn't very good), to counter it. Their arguments are shallow, badly researched, sophitical and rely in a number of instances on misreading case law (e.g., the 2nd amendment implications of Dred Scott)

[sailor4321]

These guys haven't got a clue. Well, actually, they do. They understand their anti-gun viewpoint has been dealt a severe blow and they are doing their best (which isn't very good), to counter it. Their arguments are shallow, badly researched, sophitical and rely in a number of instances on misreading case law (e.g., the 2nd amendment implications of Dred Scott)

[Jeff Head]

Hey, Akhil and Vikram ... Molon Labe!

[sailor4321]

I hereby promise to buy any one of you his or her very own tank to keep on one condition: you must be able to personally and individually (i.e., no equipment allowed) "bear" this weapons for distance of 1 mile....thus bringing it within the scope of the term "keep and bear".

[BADROTOFINGER]

(Snicker)

Oh wait, were you joking?...JFK

[sailor4321]

If you believe that some reasonable regulation is ok, do you think it's a mistake for the NRA to take a Zero-regulation stance instead of working for a compromise?

What is "reasonable" is one thing if there is no individual right to keep and bear military arms. In that situation, which the gun controllers believe, anything at all is reasonable. So you end up with things like Senators banning firearms because they look evil.

What is "reasonable" in the face of a clearly established individual right is something else altogether. It is, as the Emerson Court so correctly pointed out, something that is narrowly tailored, specific to the situation, etc.

To get your mind around it, try imagining there is no amendment protecting your freedom of religion. Now imagine what sorts of reasonable restrictions might be applied to your individual religious practices (all for the betterment of greater society, of course).

[supercat]

Why does the ammendment bring up the militia? If the framers wanted an unlimited individual right to bear arms why did they include that at all?

To make clear what is meant by the term "arms".

My reading of the Second Amendment is that the term "arms" menas, essentially, "any artifacts which would be useful as weapons in the context of a well-functioning militia". Miller seems to agree with this view.

There are two reasons I can see why it is necessary to make such a clarification:

• Without the militia reference, a President like Clinton might plausibly state that the Second Amendment protects the right of people to keep and bear [only] hunting or sporting weapons.
• Without the militia reference, almost all types of artifact could escape excise taxes or other government control if they were declared to be "arms". A bottle of 180-proof moonshine, for example, could make an effective weapon with a burning rag stuck in the end; should that mean the government is not allowed to tax or otherwise restrict it? The militia reference in the Second Amendment serves to clarify that such items may not qualify for Second-Amendment protection if they could not plausibly be used as weapons in a well-functioning militia.

An interesting irony is that the real Miller decision is actually not anti-gun, but the synopsis was apparently written by an anti-gun court reporter. Contrary to what some later court decisions have claimed in [mis]citing Miller, the Court did not uphold Miller's conviction. Neither Miller nor co-defendent Layton was ever actually convicted of possessing an unregistered short-barreled shotgun. Instead, what the court actually held was that the Second Amendment does protect arms suitable for military use, but it is the responsibility of anyone claiming Second-Amendment protection for certain arms to produce evidence of such military usefulness. While the Court ruled that the government's case against Miller and Layton would be allowed to go forward, had the government done so it almost certainly would have lost (since Miller and/or Layton could have easily demonstrated the use of "trench guns" in the Great War). By effectively dropping the case, however, it allowed the fact that the Court said it could proceed to overshadow the fact that the Court also provided Miller and Layton with an absolute defense.

[supercat]

My opinion - All but felons. Felons shouldn't be able to vote either.

There would be no Constitutional problem with a state imposing lifetime slavery as a punishment for certain crimes and allowing such slaves some freedoms while denying the right to keep and bear arms or the right to vote. Nonetheless, I don't see such lifetime impositions as being a good idea except for crimes which also justify lifetime imprisonment.

If someone who, e.g. writes a bad check for $500, is forever branded as a serf for having done so, that aspect of his punishment can only be imposed once (once his freedoms have been lost, he has none left to lose). Consequently, the punishment for his first crime will be in many ways greater than the punishment for future crimes. This is not good.

If part of the goal of punishment is to deter future crimes, I would think it more effective to provide that someone who goes 'straight' for a suitable number of years should have their full rights restored. While I know that this is theoretically possible today, restoration of rights is today generally at the whim of whatever judge hears a felon's petition. Consequently, the fact that a felon could possibly have his rights restored if he goes straight isn't apt to provide much of a disincentive to future crime. By contrast, if there were well-defined criteria (e.g. felon must be crime-free through any probation/parole, and then for an additional term of years equal to the original sentence) felons might go straight in the hopes of achieving them.

[Squantos]

You invalidate your serious debate attempt with the "own even a tank or cannon" comments. See Vermont for sanity regarding lawful use of small arms. Over 26 thousand laws on the books alone covering firearms in some form and manner.

Almost all deal with cosmetics versus capability. For example, if your shotgun barrel is under 18 inches your a criminal, if your barrel is 18 inches or more your a good citizen and not a threat to society.

If you have a bayonet lug on your rifle your a criminal, if you don't your not a suspect in the next drive by bayoneting in your neighborhood.

If you have a magazine extension on your shotgun you can't have a pistol grip on the stock. But if you have no pistol grip you "can " have a extended magazine tube :o) See where all this insanity goes ? No where but revenue base BS to make all who have simple rifles or shotguns in their homes subject to fines and or penalities per BS laws as defined by some bean counter that believes a "criminal" will indeed follow HIS/HER law.

The little SOB's that killed the kids at Columbine broke some 30 plus laws and yet polidiots responded with more laws that disarm the responsible men and women we trust our kids safety with every day who could NOT defend them because laws they follow but others don't...........

Do you have a fire extinguisher in your home ? WHY ?

Do you have Insurance on your car ? WHY ?

Do you have a spare tire in the trunk ? WHY ?

My choice to protect me and mine if I can not evade a threat at all costs (except our lives of course) is hampered by someone charging me for the constitutional right to self protection. They use my choice as a law abidding citizen to not rely on Law Enforcement, 20 minutes after I'm attacked, for protection, as a source of revenue and income. That is in and of itself criminal, more so than any criminal on the street as it is subverting the original intent of those who know what an unarmed individual is........... easy pickings for any criminal act. Be sheep if you so desire, but don't demand that I do so just because you have 24 and 7 security detail or live in a better neighborhood or city and have never been attacked or in fear of your life at Oh dark Thirty .

As the national guard was created by congress some 125 years after the signing of the constitution I'll just guess that the framers weren't so visionary that they proposed an amendment for something that wasn't even invented yet.

My 2 cents..........sorry for the rant

[pocat]

Well said, bro.

Nothing more could be added.

[supercat]

Do you have a fire extinguisher in your home ? WHY ? Do you have Insurance on your car ? WHY ? Do you have a spare tire in the trunk ? WHY ?

More to the point, given that we have doctors and fire departments, why should anyone need a first-aid kit or a fire extinguisher? Likewise, since we have police departments, why should anyone need a gun? [note: the answers are analagous]

[Looking4Truth]

Doesn't matter to me.

FMCDH!!

[Squantos]

You fell into my more to the point trap Supercat :o)........... Just what I wanted to convey to the debate the individual sought. I have carried in some form or manner now since the age of 17 years old when my grandfather gave me a 1911A1. Only had a need to use it three times in my life, twice in service and once as a retiree/civilian (no bill justifiable by Grand Jury).

I'm told that it is an extreamly rare situation for anyone to ever have to defend themselves in such a manner. Better chance of winning lotto or struck by lightning yada yada.

Well , I play the lotto and ninja beer bunny golf ( with little sucess I may add, darn it) "BUT" have "indeed" encountered the need to use self defense for me and mine and hope to the good lord that I never , ever, ever have to do it again. But at least I'm alive and well and owe it to just having the simple 1911A1 stuffed in my waistband under a baggy shirt.

My Girl Friday aka soft squeezy toy seems to think I wear it , a spare mag and a surefire flashlight just to keep my love handles from spilling over my belt :o)..........I gotta PT more I guess......

Stay Safe

[supercat]

You fell into my more to the point trap Supercat :o)...........

Perhaps you misunderstood me. Doctors and fire departments don't eliminate the need for private ownership of first-aid kits and fire extinguishers. The reason the latter are still needed is that in many cases a layman's response to a situation, executed immediately, is more necessary than a professional's response, executed later. If someone is in a major accident, a layman with a first-aid kit isn't going to eliminate the need for medical attention. If anything, the person with the first-aid kit will 'increase' it [by keeping the patient alive long enough for such attention to be worthwhile].

Police, likewise, do not eliminate the need for armed citizens, but armed citizens are not a substitute for police. Armed citizens, however, can help the police by staying alive so they can give the police the information they need to catch their would-be attackers.

[Lee'sGhost]

Here's the funny thing to me. The writer talks about it being the right of the militia -- and then goes on to talk about the National Guard. But even if he were right he would not get what he wants, because a militia is not necessarily established and maintained by a government. According to Webster's (and common knowledge) a militia is "a body of citizens organized for military service" plain and simple. I could get a group together in my neighborhood, call it the neighborhood militia, and then be perfectly within my right to own guns -- BY HIS OWN INTERPRETATION OF THE CONSTITUTION!!! Cleary this is not the outcome the writer is seeking, but even if we played by HIS rules, we would still be able to get what we want. I love it. Why are these aholes such idiots?!

[WindMinstrel]

that's why we're all "up in arms", m_i_n_a_b_t. If you read through the court ruling, you'll see that they discuss it all at length, much more cogently than these fellows do. The good counselors at findlaw have decided that they're smarter than the constitution.