MadMax: You're mistaken. The Courts have had to view gun-rights as state oriented to allow for the limited amount of gun control the nation has passed. Not possible, otherwise. There was one judge in Texas that declared it to be an absolute, individual right, but he wasn't backed up at the appellate level. I've read the case . About the founders: I'm willing to concede that there isn't a perfect record on this. It's pretty clear that some believed they were granting individual citizens the right to own a gun. It also seems like others believed they were making a states rights concession. Admittedly, I haven't read these records myself though. I'm trusting an old profs word on this one. There *isn't* an absolute case either way, though. If you really want to delve into the historical record, I suppose we can though . Feel up to it? TheFreak: But once again, one is incidental to function, the other is directly predicated. BrianKagy: We all admire and esteem your renowned kindness and benevolence to those you disagree with . Seriously, you've been quite nice lately. Except when I can't tell if you're joking or not. ------------------ Lacking inspiration at the moment... [This message has been edited by haven (edited June 11, 2001).]
Haven, the argument is simple. The second amendment states that government cannot take away an individual's right to bear arms. This right is inalienable. There are people in this country who believe that guns should be taken away from individuals for general public safety. Your professor was wrong. This has nothing to do with state's rights. If you want to take guns out of the hands of private citizens, then start a movement to change the 2nd amendment. Of course, gun control advocates realize that 2/3 of the states will never agree to repealing the 2nd amendment, and that is where we get all these word games and disinformation from the left (in my opinion). ------------------ I hate rice and beans!
Beto: I've read the court briefs myself . It's possible that the entire legal community (except one judge) is wrong, but not likely. And obviously, you've never read the Bill of Rights. In the Bill of Rights, it gives the right to bear arms to the "people." In the speech of the day, the world people often referred to states, or the State. Why didn't the Constitution say "private citizens" if it was meant to be an individual right? People is a plural, so almost by definition, not individual. Now, the single judge in Texas who agrees with you, argued that the Bill of Rights gives a right to bear arms to a PLURALITY of individuals. I guess this argument is possible; but looking at the historical record, and syntax, it seems unlikely. ------------------ Lacking inspiration at the moment...
You think that was ferocious? Yes, I did pick an unimportant part...because it is fun. It brings comments like your put down the crack pipe thingie. Also, I am not really involved in this discussion, so just thought I would play around. You did not respond to my original attempt, so i got you with the second. At least my original was slightly more legitimate. I mean it when I say I am liking you more and more. You are a caricature (no, I don't mean character) so I try to keep that in mind when talking to you. Maybe you can tell me one more time that this is all for the night...you are finished. I especially like that. ------------------ I have just realized that the stakes are myself I have no other ransom money, nothing to break or barter but my life my spirit measured out, in bits, spread over the roulette table, I recoup what I can nothing else to shove under the nose of the maître de jeu nothing to thrust out the window, no white flag this flesh all I have to offer, to make the play with this immediate head, what it comes up with, my move as we slither over this go board, stepping always (we hope) between the lines
Beto: Rimbaud enjoys leaving the meat of the argument to other people, and likes sniping at the sides. Personally, I think between most of us we usually exhaust both sides, so I enjoy his snippets of humor. Of course, you could just chalk this horrific flaw to his excessive liberalism . *gasp* ------------------ Lacking inspiration at the moment...
Rimbaud is right. The US has a murder rate 4x times the comparable 1st world democracies. Some of these countries require gun ownership, other prohibit them. In the former case, Switzerland is an example (for males after their mandatory military training). However, individuals there are also required to only have 12 bullets, have it registered, keep it locked, and have substantial training. It is crazy to deny the lack of regulation, cheap supply, and lack of training regarding guns are key contributers to our outragous murder and accident death rates. Also, I agree the best way to debate gun control is to avoid the 2nd amendament, as Shana, Timing (although I think he/she did not intent to) and myself have done. It is pretty obvious that the text "the right to bear arms should not be infringed", if interpreted that the framers thought persons should have unfettered access to arms, is simply no longer applicable to modern society. Remember, the 2nd amendement doesn't refer to "guns" it refers to "arms", or to use another term, "weapons". Thus the "gun control" debate should really be defined as a "weapon control debate": that is, which weapons are prohibited from individual ownership, which weapons are allowed with extreme safeguards (registration, training, safety protections, etc.), or which weapons are allowed and unregulated. In my view some guns or ammo should be in the 1st category (machine guns, armer piercing bullets), others should be in the 2nd category, perhaps others in the 3rd (bb guns). This is what the debate should be about. But you missed my whole point Timing, which was to say the 2nd amendment can no longer be literally applied if you believe it means the citizens should be allowed to have the arms neccesary to overthrow government. This is one of the tenets of the NRA, and it makes no sense. Again, obviously in modern soceity this position is ludicres (letting people have nukes and large scale conventional weapons--which is what they would need to fight our governments military). The question is which weapons are prohibited or regulated, and how specific types of guns or ammunition fit in the debate. BTW timing-no one that I have heard has ever said the 2nd amendment was chiefly concerned with allowing individuals a free choice of weapons to defend their homes from criminals, rogues or the like. There is no constitutional right of such (you might think there should be, but that would require an new admenment). Whether regarding militias or individual resistance (this is what Haven and others are debating), the 2nd amendment was about power to resist an out of control government, not individual protection from a robber or the like.
Thank you, Desert Scar, for finally refernecing my hard work in tacking down that Dept of Justice report. Even though it was intended for Max, I am glad you paid attention, at least... ------------------ I have just realized that the stakes are myself I have no other ransom money, nothing to break or barter but my life my spirit measured out, in bits, spread over the roulette table, I recoup what I can nothing else to shove under the nose of the maître de jeu nothing to thrust out the window, no white flag this flesh all I have to offer, to make the play with this immediate head, what it comes up with, my move as we slither over this go board, stepping always (we hope) between the lines
While I don't disagree with you that the 2nd Amend is not there to protect my right to defend my family from criminals or the like...I think your confidence in your position as the obvious right answer is laughable. Someone on some other post back said that if you took the opposite stance you would get laughed out of a court or a law school. Having graduated from law school I can tell you that you couldn't be further off. Clearly by the wide range of articles debating the topic, the issue is not well settled. It certainly hasn't been well settled in the courts at all. Yes our 2nd Amend rights have been limited by the courts (certain guns and "arms" cannot be owned by private citizens), but that's no different from our 1st Amend rights (can't yell "fire" in a public place). All our rights in the Bill of Rights are limited in some way...but in no way are they completely erased from the Constitution, as many gun control advocates would have it with the 2nd Amendment. To act as if this is well settled among those in the legal community is just a joke, though...believe me, we're not that smart!!! and, quite frankly, neither are you! ------------------
haven -- I don't know that your assertion above is correct. But even if it is...how often are those challenges even made?? For how long have we had any sort of real gun control that's been met with lawsuits that would have reached the Supreme Court??? And on what grounds were those cases denied?? Has there been any comment as to why they were denied??? --- there usually isn't. But again...if it's so clear, then why the endless articles from legal scholars (including one of my old professors, David Crump) about the issue??? ------------------
MadMax: Two things. 1. My argument wasn't *quite* as strong as I initially thought it was (I went back and reread the ext of Miller - it had been a couple of years). It *is* true that the Supreme Court seemed to reject the individual right to bear arms in Miller v US, when it argued that the standard for rejecting gun laws was if it prevented a militia. However, I must admit, that they did not point blank say: "it dones't exist at all, individually." 2. The Supreme Court has been silent on the issue since then. They haven't even given reasons for rejecting the cases. They just don't take them. At the Appellate level, the individual right to bear arms has been rejected... and the Supreme Court has not overturned those decisions. Which is not a confirmation in itself... *shrug*... but at the same time, if the different Supreme Courts *did* believe in it... they've had plenty of opportunities to state so. I don't have information on the exact # of cases they've refused to hear. I just know it's happened a few times. The debate? Three reasons: 1. Even if there isn't a strict individual right to bear arms, there may be a correllated right. Like, if it's necessary for individuals to bear arms at times to allow for a militia. Is it? Not sure. But that would substantially reduce the strength of the right. 2. Antonin Scalia hinted that reconsideration of the issue is possible in 1998. I think he's waiting for reinforcements. Stevens, Souter, Breyer, and Ginsburg are certainly against him. It's likely that either Kennedy or O'Connor (or maybe even both) are as well. He and Clarence Thomas may be hoping that one of htose guys retires. 3. There's nothing wrong with disagreeing with the Supreme Court. I do it all the time . ------------------ Lacking inspiration at the moment... [This message has been edited by haven (edited June 13, 2001).]
Again...I've never asserted that the right exists so that I can defend my home from criminals...but it seems to me (and you hinted at it in your last post) that in order for the 2nd Amend to work, individuals have to have the right to bear arms, however we choose to ultimately define that. See what I mean??? Otherwise, the 2nd Amend means absolutely nothing. The 2nd Amend reads as follows: "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." In other words...to secure a free state, the Founders secured the right of the "people to keep and bear Arms." I don't see how this gets you away from individuals being able to own weapons. But maybe I'm shortsighted because I have strong views on this issue. I would also argue..under the line of cases that fall with Lopez from the mid-90's...that Congress doesn't have the power to make these sorts of laws...in that case, Congress passed some law relating to guns near school campuses. They said the power to craft the law came from the Commerce Clause. Basically they used ridiculous mental and legal gymnastics to say that guns in school kept kids from learning which ultimately affects our economy, and thereby providing a route for Congress to legislate through. But the Supreme Court said this was a joke and that these sorts of laws need to be left to the states. Another federal law concerning gun registration was overturned because ultimately it called on state police officers implementing the mechanisms of the execution of the law...and that is unconstitutional. If you allow Congress the power to do whatever is possible at any given time (as many of you would), you could care less about this. But if you're concerned at all with traditional notions of federalism and checked power, Congress' self-made expanded power to legislate in the area of crime (an area, more so than others, that is almost entirely left to the states to deal with) should disturb you a bit. But I suppose respecting those notions makes me a bit silly to someone willing to turn over their liberties everytime they're asked to. Liberals always argue that things change and thus the Constitution shouldn't be the final authority. For a thousand reasons I find that disturbing. We've expanded the First Amendment far past what it was ever intended to mean...we've created new "rights of privacy" that simply do not exist at all. Now we hear about "rights to health care"..soon we'll hear about "rights to energy"...we're starting to hear about "right to the internet." Oddly enough, the 2nd Amend right has evolved, if not in the courts, at least in society. Those who support the right usually do so because ultimately they'd like to be able to defend their home from intruders. I'd rather not wait on the police and wish I had bought a gun as someone is harming my wife and son. I also believe that it is far more difficult to exercise tyranny in a country where citizens have guns. But that's not the primary reason I defend the right today...despite the fact that analysis along that view may or may not play in court at all. If rights evolve from the Constitution, as liberals always say...then I would argue that this right has evolved as well. ------------------ [This message has been edited by MadMax (edited June 13, 2001).]
MM, it seemed like the above post was a reaction to content of mine and Haven'a, so I'll provide my response. To me it is well settled. I only provided the extreme (laughable) analogy to prove a point. The protection of society (e.g., why you can't yell fire in a theatre, why you can't store radioactivity on your own property freely) is a recognized factor limiting individual rights. Thus the the "arms control" or "weapon control" debate should be framed in terms of balancing individual rights and community threats. (I will not say "gun control" debate because this is misleading: there is nothing unique to the essence of a gun over other weapons except for the mass production, commerical interests, and lobbying power often associated with them. There are no special rights that gun owners consitutionaly have beyond other weapon owners (bow and arrow, bbgun, crossbow, club, knife, RPG, etc.)--the key issue about whether they should be prohibited/regulated is each type of arms degree of threat to society. But the NRA and the pro-gun lobby doesn't want to go there, and tries to trump up this nonextistant right to freely own all and any type of guns and ammo without any regulation. Again, there obviously isn't much weigt to these views provided by the constitution--either literally or in terms of spirit. [This message has been edited by Desert Scar (edited June 13, 2001).]
Desert Scar -- it's settled as to you...ok, great...I'll alert the media and let them know! All kidding aside...whether or not the opinion is settled in your mind is not what I was referring to here. I was referring to the notion that this is somehow well settled in the courts or within the legal community. ------------------
posted June 13, 2001 04:37 PM Again...I've never asserted that the right exists so that I can defend my home from criminals...but it seems to me (and you hinted at it in your last post) that in order for the 2nd Amend to work, individuals have to have the right to bear arms, however we choose to ultimately define that. See what I mean??? Otherwise, the 2nd Amend means absolutely nothing. No, it allows states to have an independent enforcement mechanism. I do agree that the 2nd Amendment would prohibit banning guns. But you can fit in a GREAT deal of restrictions before you infringe on it. The 2nd Amend reads as follows: "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." In other words...to secure a free state, the Founders secured the right of the "people to keep and bear Arms." I don't see how this gets you away from individuals being able to own weapons. But maybe I'm shortsighted because I have strong views on this issue. To me, this means you have to allow individuals to own weapons insofar as it allows for the militia. This, to me, entails not banning guns. Shanna raised a good point about this elsewhere: originally, this provision was intended to allow the overthrow of an oppressive state. Tanks and bombers would be necessary for this. SHould individuals be able to own these? I would also argue..under the line of cases that fall with Lopez from the mid-90's...that Congress doesn't have the power to make these sorts of laws...in that case, Congress passed some law relating to guns near school campuses. They said the power to craft the law came from the Commerce Clause. Basically they used ridiculous mental and legal gymnastics to say that guns in school kept kids from learning which ultimately affects our economy, and thereby providing a route for Congress to legislate through. But the Supreme Court said this was a joke and that these sorts of laws need to be left to the states. I've read the case. Lopes was the first major case the feds lost on the issie since Roosevelt. Yes, the feds lost... but you need to look at how much the feds gained before. The commerce clause has been interpreted extremely broadly... and now that we have a conservative court, it's constricted, but only slightly. I'd guess that once Scalia's gone, it will expand again. Another federal law concerning gun registration was overturned because ultimately it called on state police officers implementing the mechanisms of the execution of the law...and that is unconstitutional. If you allow Congress the power to do whatever is possible at any given time (as many of you would), you could care less about this. But if you're concerned at all with traditional notions of federalism and checked power, Congress' self-made expanded power to legislate in the area of crime (an area, more so than others, that is almost entirely left to the states to deal with) should disturb you a bit. But I suppose respecting those notions makes me a bit silly to someone willing to turn over their liberties everytime they're asked to. First: That part of Brady was *not* declared unconstitutional because it included excessive federal control of the state. It was found to be an "unfunded mandate." The feds were requiring something that would cost a prodigious amount, without paying for it. That was the conflict. once again, look at how much powre the feds GAINED from about 1938 - 1990 or so. yes, there has been a bit of retraction, but nost much. I believe greatly in individual liberty. I don't care much about state's rights. And I don't think the right to own a firearm is inherent to individual liberty. BTW, you don't have to argue for an evolving constitution to allow for hte right to privacy, etc. What you have to acknowledge, is that certain problems didn't exist back then. So, then, can we find the PRINCIPLES inherent in the constitution to support the right to privacy (or others)? I think we can. Lawrence H. Tribe (Prof, Harvard Law) wrote quite compellingly about this, if you'd care to read. ------------------ Lacking inspiration at the moment...
Liberals always argue that things change and thus the Constitution shouldn't be the final authority. For a thousand reasons I find that disturbing. Do you disagree with this? For example, Do you think we should still pick the Vice-President based on: In every case, after the choice of the President, the person having the greatest number of votes of the electors shall be the Vice President. Seems to me that the Founders realised that the Constitution was not comprehensive and considered that in stating "The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments," Conservatives and Liberals want things that are "unconsistitutional". The simple process to do that is create a Constitutional Amendment. Conservatives have proposed them just as much as Liberals -- for example, creating a "right" of the American people to a government with a Balanced Budget or the removal of the right to burn the flag. ------------------ http://www.swirve.com ... more fun than a barrel full of monkeys and midgets.
I don't remember it being Brady...but I can't remember what the name of the case was...but I studied it twice..once in Const Law..once in Criminal Procedure. Both times I learned that the federal gun restrictions could not be carried out by state troopers, because it was ultimately the federal govt controlling state authorities. I nearly wrote my seminar paper on that case in Advanced Criminal Law. Hopefully I'll remember it and get back to you on it. ------------------
Shanna: I don't think he was railing against Constitutional Amendments. Just the idea of the Constitution as a malleable, living, evolving documents. I think it is, obviously . ------------------ Lacking inspiration at the moment...
This is interesting because you agree with the main principles: This was one of my primary points, there is no constitutional right in this sense. Maybe you think there "should be" such a right--maybe I'll even partly go along with this, maybe you think it is an American priciple. But "guns" have no special constitutional protection above other "arms". No constitional literalist (which extreme conservatives like Scalia and Thomas are so fond of saying they are) could see this differently if they are remotely intellectually honest. Now if you are a constitutional interpretest--one who believe's the spirit of the constitution is what we should view constitutional law from (I could be considered in this category), I'll agree you may have a small thread to lean on. But it is a small thread, and one that has to be balanced with the next issue (public safety). Exacty, public protection and societal interests are important American, and constitional, themes. The "arms control" debate must consider this, but the gun lobby tries to hide behind an unfettered constitutional right that does not exist in that state (as a universal right). Yes again, it is pretty clear. Just because a lot of people (with specific legal training or otherwise) don't see it (for various reasons-financial interests, trying to keep there well established political ideology intact, lack of information, lack of study) does not mean the issue is not clear. Given you agree with most of my points, I can only include your (mildly) inflammatory response is not because I tipped your sense of reasoning about the issue.
Exactly haven...that's exactly what bothers me. Change through the proper procedure -- namely amendment-- is fine. That very arduous process is what protects us, in my opinion...it was made difficult to change for a reason. As for the commerce power -- you're absolutely right...it was expanded primarily from the New Deal on. Doesn't mean I have to like it, though!!! The ridiculous gymnastics that Congress has to go through to justify its power in areas traditionally reserved to the States make a mockery of the whole idea of putting the commerce power in the constitution in the first place. We might as well just created a Parliament like the one the Founders hoped to safeguard against when they sat down to write the Constitution. ------------------
Again some of you are taking plain English and blowing it up to serve your agendas. I'm sure the word arms was left intentionally vague so that the people could use their common sense to define it in a modern context. If you want to stretch arms to mean basically ANYTHING that kills, then surely we can strech well regulated milita to mean ANYONE who lawfully owns a weapon. What's good for the goose... I really don't know why liberals go around and around on this subject. Guns aren't going anywhere and gun registration won't be happening. We live in a certain reality. Wrangling over the language and the legalities of the 2nd amendment is simply not going to affect that reality. ------------------ The death penalty SUCKS.
