kilimanjaro
New member
Precisely. Add 'reasonable restrictions' to the list, as well as 'compelling public necessity'.
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Federal judge upholds strict new Maryland gun laws
- Thread starter 2damnold4this
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Aguila Blanca
Staff
Which leaves us wondering if today's politicians and judges (up to and including the SCOTUS) don't understand "shall not be" or if they don't understand "infringed." The first is legally mandatory language, not optional. The second means "limited" or "restricted." It's rather straightforward English, but this country stopped speaking English a long time ago.
kilimanjaro
New member
Of course they understand the words. They don't care, it's a political matter, as far as they are concerned.
I asked someone close to me who is a part of the bureaucracy and his answer was simple.
We don't care about individuals or their rights.
What we care about is that no one wants to be the one that opens the floodgates and then has to deal the internal guilt and public blame when the next deadly event take place and every one thereafter.
My hope is that this returns to the supreme court and that these latest events pin them down to make a more clear decision that mirrors the constitution.
We don't care about individuals or their rights.
What we care about is that no one wants to be the one that opens the floodgates and then has to deal the internal guilt and public blame when the next deadly event take place and every one thereafter.
My hope is that this returns to the supreme court and that these latest events pin them down to make a more clear decision that mirrors the constitution.
Armed_Chicagoan
New member
Some of these judges think "the people" means "state-commanded and controlled militia", apparently they're like Humpty Dumpty in Wonderland, where words mean whatever they want them to mean.Aguila Blanca said:It's rather straightforward English, but this country stopped speaking English a long time ago.
Aguila Blanca
Staff
Yes, that "The Constitution is a living document" theory again ...
Aguila Blanca said:Which leaves us wondering if today's politicians and judges (up to and including the SCOTUS) don't understand "shall not be" or if they don't understand "infringed." The first is legally mandatory language, not optional. The second means "limited" or "restricted." It's rather straightforward English, but this country stopped speaking English a long time ago.
Understanding English is not the hard part; trying to make sense of words in a totally alien environment is the problem.
The Second Amendment was written as a clear prohibition against federal government interference in an area perceived to be the domain of the states. But that structure of no federal power or authority was based on the reality of state power and authority. The awkward process of "incorporating" the Bill of Rights through the 14 Amendment creates the problem. If the Second Amendment is applied to the states absolutely, as it was intended to be applied to the federal government, then no level of government would have any power or authority over arms. That result clearly flies in the face of the understanding and intent of the Founders when the Second Amendment was adopted. Thus, the square peg meets the round hole.
Aguila Blanca
Staff
Please expand on this. I've read a lot about the Constitution and the pros and cons at the time it was adopted, and I have no idea what your statement means. It seems to imply that the Founders didn't care if the states infringed the RKBA, yet the fact was that virtually all the original thirteen colonies/states either already had a similar (sometimes stronger) prohibition in their constitutions, or adopted something very similar soon after the federal Constitution and Bill of Rights were ratified.gc70 said:If the Second Amendment is applied to the states absolutely, as it was intended to be applied to the federal government, then no level of government would have any power or authority over arms. That result clearly flies in the face of the understanding and intent of the Founders when the Second Amendment was adopted.
Reading contemporaneous writings, it seems clear to me that the Founders absolutely intended that the RKBA should not be infringed -- at any level. What am I missing?
Until the 14th Amendment, to wit:
"All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States...."
It is my understanding that until this time, the provisions of the Bill of rights were restriction on the national gov't -- not the individual states. In fact prior to the ratification of the 14th Amendment, there was no legal definition of a "citizen of the United States", as everyone had primary citizenship in one of the several individual states.
Since that time, the Amendment protections have been gradually extended to cover state actions against their citizens, but even those extensions have tended to be piecemeal, selective, and politically driven.
... please weigh if this is demonstrably not the case....
"All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States...."
It is my understanding that until this time, the provisions of the Bill of rights were restriction on the national gov't -- not the individual states. In fact prior to the ratification of the 14th Amendment, there was no legal definition of a "citizen of the United States", as everyone had primary citizenship in one of the several individual states.
Since that time, the Amendment protections have been gradually extended to cover state actions against their citizens, but even those extensions have tended to be piecemeal, selective, and politically driven.
... please weigh if this is demonstrably not the case....
I suspect the signatories of the constitution intended there to be no governmental authority over the possession or purpose of arms (just the use/consequences)...but with the clear understanding that it was impossible for a governing structure to remain disciplined & avoid infringing upon the right almost immediately.
It'd be like how human equality was a base principle underpinning the whole arrangement, yet the 2/3rds compromise for slave 'votes' was shoe-horned in before the document had even been signed. The RKBA, like all the other rights, is aspirational. The Bill of Rights has never been a guarantee (which is why so many founders opposed it playing at being one & did not want it included), but is instead a statement for us future generations to reflect back upon; are we abiding it? If not, we know we are straying from the principles supporting our entire governmental framework, and should work to correct ourselves.
As we know, the RKBA is one of, if not the hardest, of the explicitly-enumerated rights for governing bodies to respect and stay clear from. Almost as difficult as the recognition of intrinsic human equality before the law (and for a lot of the same reasons, to be honest)
TCB
It'd be like how human equality was a base principle underpinning the whole arrangement, yet the 2/3rds compromise for slave 'votes' was shoe-horned in before the document had even been signed. The RKBA, like all the other rights, is aspirational. The Bill of Rights has never been a guarantee (which is why so many founders opposed it playing at being one & did not want it included), but is instead a statement for us future generations to reflect back upon; are we abiding it? If not, we know we are straying from the principles supporting our entire governmental framework, and should work to correct ourselves.
As we know, the RKBA is one of, if not the hardest, of the explicitly-enumerated rights for governing bodies to respect and stay clear from. Almost as difficult as the recognition of intrinsic human equality before the law (and for a lot of the same reasons, to be honest)
TCB
The 2/3 (it was a little different I think, but that doesn't really matter for this discussion) vote was slipped in so that the slave states could not count the slaves to give them more voting power than non slave states. Despite what the Farrikans etc claim, it was not to diminish the humanity of blacks but to ensure they were not used to increase votes in favor of slavery. The slave owner could determine the slaves' votes.
Aguila Blanca said:Please expand on this. I've read a lot about the Constitution and the pros and cons at the time it was adopted, and I have no idea what your statement means. It seems to imply that the Founders didn't care if the states infringed the RKBA, yet the fact was that virtually all the original thirteen colonies/states either already had a similar (sometimes stronger) prohibition in their constitutions, or adopted something very similar soon after the federal Constitution and Bill of Rights were ratified.
Reading contemporaneous writings, it seems clear to me that the Founders absolutely intended that the RKBA should not be infringed -- at any level. What am I missing?
As noted in the Heller decision, only four state constitutions contained a right to bear arms when the Bill of Rights was ratified.
PA 1776 - XIII. That the people have a right to bear arms for the defence of themselves and the state;
VT 1777 - XV. That the people have a right to bear arms for the defence of themselves and the State;
MA 1780 - Art. XVII. The people have a right to keep and to bear arms for the common defence.
NC 1776 - XVII. That the people have a right to bear arms, for the defence of the State;
The state constitutions acknowledged a right to arms, but did not bar the states from adopting what we would call 'reasonable regulations' today. Indeed, Heller and McDonald examined a few of those early regulations. In contrast, the Second Amendment (at least as I read it) totally denies the federal government any power regarding the right to arms.
Based on the historic record, the Founders appear to have been comfortable with the states retaining power related to the right to arms, but were emphatic ("shall not be infringed") about the federal government not being involved in any way.
I did not mean to suggest that the Founders "didn't care if the states infringed the RKBA." Rather, I think the Founders believed that the people of the respective states were the ones who should make determinations for their states.
The Second Amendment was written as a clear prohibition against federal government interference in an area perceived to be the domain of the states. But that structure of no federal power or authority was based on the reality of state power and authority. The awkward process of "incorporating" the Bill of Rights through the 14 Amendment creates the problem. If the Second Amendment is applied to the states absolutely, as it was intended to be applied to the federal government, then no level of government would have any power or authority over arms. That result clearly flies in the face of the understanding and intent of the Founders when the Second Amendment was adopted. Thus, the square peg meets the round hole.
This was cleared up by the Supreme Court in 2010 in the case McDonald v. Chicago. The Court held that the individual RKBA protected by the Second Amendment is incorporated by the due process clause of the 14th Amendment and applies to the states.
Aguila Blanca
Staff
I believe that's incorrect. That citation from Heller was a reference to the only four original states whose constitutions made the RKBA a collective right ("for the common defence"). Most, if not all, of the other states either guaranteed to the[ir] People a RKBA that was not tied to the common defence, or that was for both personal and common defense. (Curiously, Massachusetts was one of the few outliers, that recognized ONLY the common defense for the RKBA.)gc70 said:As noted in the Heller decision, only four state constitutions contained a right to bear arms when the Bill of Rights was ratified.
I don't this is correct, either. The Pennsylvania state constitution, for example, says that the RKBA "shall not be questioned."The state constitutions acknowledged a right to arms, but did not bar the states from adopting what we would call 'reasonable regulations' today.
Aguila Blanca said:I believe that's incorrect. That citation from Heller was a reference to the only four original states whose constitutions made the RKBA a collective right ("for the common defence"). Most, if not all, of the other states either guaranteed to the[ir] People a RKBA that was not tied to the common defence, or that was for both personal and common defense. (Curiously, Massachusetts was one of the few outliers, that recognized ONLY the common defense for the RKBA.)gc70 said:As noted in the Heller decision, only four state constitutions contained a right to bear arms when the Bill of Rights was ratified.
From page 29 of Heller:
We therefore believe that the most likely reading of all four of these pre-Second Amendment state constitutional provisions is that they secured an individual right to bear arms for defensive purposes. Other States did not include rights to bear arms in their pre-1789 constitutions—
You will find the same results if you check the individual state constitutions (as I did) at Yale's Avalon Project website.
Aguila Blanca said:The Pennsylvania state constitution, for example, says that the RKBA "shall not be questioned."
The Pennsylvania Constitution of 1776 did not contain such language. That language was adopted subsequent to the Second Amendment's ratification in the Pennsylvania Constitution of 1790.
So can the court that this was sent back to just do some pretzel logic and claim that they are utilizing "Strict Scrutiny" to uphold the AWB and magazine capacity limitations? I mean a lot of the logic these courts use is asinine anyway regarding how they support gun control.
It would be very interesting to see how they could reconcile a blanket ban on a commonly owned weapon with strict scrutiny.So can the court that this was sent back to just do some pretzel logic and claim that they are utilizing "Strict Scrutiny" to uphold the AWB and magazine capacity limitations?
Tom Servo said:It would be very interesting to see how they could reconcile a blanket ban on a commonly owned weapon with strict scrutiny.LogicMan said:So can the court that this was sent back to just do some pretzel logic and claim that they are utilizing "Strict Scrutiny" to uphold the AWB and magazine capacity limitations? I mean a lot of the logic these courts use is asinine anyway regarding how they support gun control.
That was my whole point in stating the Third Option.
As we have seen, time and again, the lower courts have used Intermediate Scrutiny in name, but Rational Scrutiny in practice. I would expect the exact same: Strict Scrutiny in name, but Rational Scrutiny in practice. See Korematsu v. United States