Constitutional Basics
- Thread starter Brownstone322
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Brownstone322
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If it makes ya feel any better, I like your posts and analysis a great deal!whines, sniffs, and slinks back into the outer darkness.....
for now......
--Wag--
Brownstone322
New member
I see what you're saying, but I don't entirely agree with you. We have myriad laws at all levels that establish rights for individuals that actually go beyond the Constitution, such as the Civil Rights Act of 1964, the Fair Credit Reporting Act or the Americans With Disabilities Act. We have countless workplace laws and consumer-protection acts for buyers and borrowers and renters. The list gos on forever.
From a standpoint of semantics, we might just swap in the word "rules" for "rights," because rules apply to both sides. In Virginia, the rules say I do indeed have a right to carry a firearm openly in public; I can also carry one concealed or in my vehicle with a proper permit. The state does not have the power to deny me in either case (assuming I qualify for the permit, of course).
Day to day, our legal freedoms and protections (aka "rights") are much more affected by statutory laws than the Constitution.
Fair point, but it offers no evidence to the contrary. You might argue that any law that's never been reviewed by the federal judiciary is unconstitutional; that's easy. But I'll counter with this: "According to whom?" When a law has been around for, say, 100 years, I'm gonna lean toward the status quo. That is de facto evidence.
By the way, I always thought the "line-item veto" (a darling of Republicans in the '90s) violated Article I. But the courts struck it down in a New York minute, not after a hundred years.
This is a fair possibility, but we're not privy to the court's internal wrangles. But if the current court yet again declines to hear challenges to bans on "assault weapons" or "high-capacity" magazines, then we might start inferring that they're not interested in righting any wrongs.
He certainly did:
"[The Second Amendment] is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
This wasn't a ruling, by any means, but it was a clear indication of the court's thinking. And Scalia was as strong an advocate of gun rights as we're ever likely to see.
I think that's extremely unlikely, and I know of no evidence to support that argument (in regard to the Second Amendment or any other amendment). Scalia didn't agree with that, and I think it's almost unfathomable that five judges would (especially Roberts).
I agree with all of that and always have.
I get the feeling that is about to change. IIRC, Several Supreme Court justices have written opinions and are actively debating the intentions of the 2nd Amendment.
It has been quite a while since a case came before the SCOTUS.
It is simply the political tar-baby of the 21st Century. The conundrum of dealing with a generation that does not have the same moral foundation as previous generation leading to the plethora of mass shootings that IMHO really amount to temper-tantrums from those who felt they did not get the trophy they deserve in life has made debate toxic.
The simplistic want to "ban guns" and is a very popular sound bite. The opposite see the 2nd Amendment as their right to own weapons of mass destruction and crush others right to security with irresponsible behavior such as open carry for the purpose simply being in everyone's face. It is NOT an unfettered absolute.
Having just finished:
https://www.goodreads.com/book/show/34350212-andrew-jackson-and-the-miracle-of-new-orleans
It struck me as very applicable to today's gun debate and the meaning of our 2nd Amendment. The opening chapters are on the Creek War. That war opened up with the Creek Indian tribes massacring a settlement murdering several hundred women and children.
The militia was assembled several times during that war and fought the bulk of combat. The militia was every able bodied male who could answer the call to arms. They provided their own rifles, ammunition, and kit. There was no pay and service was limited to one year with meals and berthing provided.
Andrew Jackson was NOT an officer in the United States Regular Forces but simply an educated entrepreneur and had served as a state representative. He was elected a Major General in the Militia with no formal military training.
Who is the Militia? Everyone who is able bodied.
What is there responsibility? To own and obtain equipment necessary to serve in the defense of our society and their person liberty within the confines of the Constitution.
Are they Regular Forces? No, they are just citizens with a duty to protect when called upon.
What is their duty when called upon? They have a duty to support our society. There is no duty for blind obedience to a single government entity. Like regular forces, they have duty to the Constitution not an administrator.
In today's society, we seemed to have forgotten that a standing Army was considered a necessary evil but an evil nonetheless. It was as much a potential threat as savior. As a career soldier, you can see that. Just as we have allowed a "Ruling Class" to develop in our society, we have allowed a "Military Class" to develop.
We have generational service with children following their parents footsteps in Military Careers. There is a gulf that has developed between the military and civilian population they serve. Military service members tend to be better educated and have very different experiences shaping their viewpoint from the civilian population.
This is a dangerous trend. As our "Ruling Class" of career politicians forgets where their power comes from as outlined in the Constitution those that are in place to protect that relationship are distanced from the protected.
file:///C:/Users/Owner/Downloads/3192-4713-Understanding-Military-Culture-(12-31-15).pdf
http://www.facethefactsusa.org/facts/tanks-and-humvees-caps-and-gowns/
This all leads to unintended consequences of our Civil War where we decided through force of arms that a central government would have dominion over local governance.
That dominion cannot be absolute just as our Governmental power is not absolute as defined in our Constitution.
The experiences of Bundy and the Bureau of Land Management are a good example of our 2nd Amendment rights working as our Founding Fathers intended.
https://www.politico.com/story/2014...u-of-land-management-10-things-to-know-105735
Whether one agrees or disagrees with the specifics or mechanics of the case, it is a fact that the 2nd Amendment rights halted what was perceived a strong central governmental overreach by armed local citizens.
Fortunately, we do have a good system. Cumbersome, slow, and inefficient but the about the best offal sandwich one can make out of offal. It tends to resolve these issues and balance everyone's rights rather well given its ability to correct a course once set upon.
The 2nd Amendment is what gives teeth to the first and is ultimately the guarantee of our liberty. While many use firearms for recreation, that is not the right that is guaranteed under it. It is there to secure personal liberty within the confines of the other rights secured by our creator and not Washington DC.
I think given the recent appointments to the SCOTUS that a constitutionalist viewpoint will prevail and the SCOTUS will deal with this issue.
I also think that we as gun owners need to support reasonable measures that seek to limit the access of firearms to the mentally unstable and those who are convicted felons. It does no one any good to have innocents killed or see violence perpetrated outside of a soldier on the battlefield in lawful conflict, police officer in the conduct of his duties, or a citizen in fear for their life.
Roamin_Wade
Moderator
I don't have the time, or the inclination, to teach all of you how it works. Only I understand the law and if you do not agree with me, you are wrong. I actually got all my knowledge of how the Constitution works from some webpage on the internet so it must actually be how it is!!! Now move out of the way from the TV, I'm playing a video game right now... (says the common 18 year old these days) 
Which is all good and constitutes your opinion.
Obviously, there are many folks who do not agree with your opinion hence the debate and political theater.
I happen to agree with you but as gun owners we need a better response than:
In order to fight back.
Things like measurable metrics and facts. Not just parroting an opinion.
I think we have interrupted an informed legal debate between Brownstone322 and Aguila Blanca which I was interested in seeing continue. I just thought the history was interesting and backed up a SCOTUS Justice opinion I recently read on the meaning of the 2nd Amendment.
That meaning being we do not have an unfettered right to a gun but rather a right/duty to maintain a viable defense. It does not secure the right to shoot paper targets but rather the right to arm ourselves to defend the nation and if necessary, the inalienable rights bestowed by our creator as outlined in our Constitution.
You have to remember, the Musket was not a hunting weapon. Hunting was for rifles. The musket was a weapon of war in its day and every bit equivalent to an AR-15.
This Article for example:
https://www.washingtonpost.com/news...n-ar-15/?noredirect=on&utm_term=.1b1358366d9c
Seeks to invalidate the 2nd Amendment because at the time it was written, the Musket was the weapon of choice for warfare.
It is a factually incorrect article though. The average Musketman could get off 7 to 8 shots a minute with paper cartridges. The average rifleman could only get off 2-3 shots per minute because he had to fight the rifling to seat the bullet.
That is why Muskets were used instead of rifles and ruled the Battlefield until the advent of the miniball and rifled musket. Massed firepower followed with a bayonet using the tactics of the day made the Musket very lethal in comparison to a rifle.
The rifle was considered a tool to feed your family outside of a small military niche of scouts/skirmishers in the Military tactics of the day. The Musket was a weapon of war and equipped the footsoldiers of the worlds army's.
In the 21st Century, the equivalent weapon of war would be an AR-15 or similar semi-automatic shoulder fired magazine fed small arm.
The clear intention of our Founding Fathers in drafting the 2nd Amendment was for our citizenry to be able to defend itself to include Government run amok. They wanted the Militia, Militia being every able bodied male, to be able to do its job.
Glenn E. Meyer
New member
Just to comment that NRA folks say that the defense against tyranny doesn't sell for them. Heller starts off with self-defense as primary.
The lack of mention of defense against tyranny as a primary and focusing on self-defense has created a paradigm that accepts limits on the higher capacity weapons for many courts.
The lack of mention of defense against tyranny as a primary and focusing on self-defense has created a paradigm that accepts limits on the higher capacity weapons for many courts.
Absolutely. While the historical context and IMHO, a defense against tyranny was on the forefront of the framers minds after securing their liberty from the largest empire the world had seen at that time it does not make a great lead in.
However I interpreted the phrase:
I agree with the NRA assertion because it is a natural development of the wording of our laws. I was taught that at the time of Founding Fathers, You were a member of the "militia" of the United States simply by being a citizen and have a duty to uphold. Acquiring a weapon was not connected to militia service because the militia only serves or forms when called upon. That fact a militia does not form does not divest one of their duty to be prepared.
In the modern interpretation, I think that duty to be prepared to defend holds up. The Supreme Court has already ruled that Police do not have a duty to protect individuals but rather society. The individual has already been given a clear mandate to provide their own defense.
The Militia Act of 1792 states:
One was always in the Militia. It is not something that necessarily meets or forms at time other than when called upon. It is NOT the National Guard or Reserves, those are modern developments. It was a seperate entity unto itself that every male citizen was a part of as a condition of citizenship.
And that:
Every male was automatically in the Militia and each had to provide his own weapon capable of sustaining modern warfare on the battlefield. Each man was an infantryman as part of his responsibility as a citizen of the United States.
https://www.constitution.org/mil/mil_act_1792.htm
Each State had it's own Militia laws. Common theme is that membership in that militia is automatic and it is up to the member to provide his own arms. What is not automatic is the formation or actual use of that militia.
http://www.flintriflesmith.com/WritingandResearch/Research/militia_laws.htm
Even before we became a nation, the Tradition of Militia was well rooted in the New World.
The Salem Colony directed:
https://history.army.mil/reference/mamil/MAMIL.HTM
Therefore, the SCOTUS interpretation as found in District of Columbia vs Heller is correct:
https://www.supremecourt.gov/opinions/07pdf/07-290.pdf
So, any argument that the 2nd Amendment only applies to organized military forces or confined to sporting arms is simply not factual.
IMHO, An AR-15 or Military Style arm is not a by-product of the 2nd Amendment, it is central too and the implicit reason for that Amendment.
How about this? WE are DONE
WE will no longer entertain ANY talk of more "reasonable" gun control
WE want some give back for everything we have given up
If YOU do not like that, WE are prepared for Civil War
enough is enough, I am DONE
They will not be "civil" until they have won back the house, senate and president; then there is NO discourse or compromise.
Well then, the second amendment is done then. It’s only intention is to defend against a tyrannical government, so if you can’t do that there’s no point in ownership of firearms.
I’m not a fighter, so I am merely taking advantage of the second amendment for my own entertainment and the slim chance I may need to defend myself.
I’m not a fighter, so I am merely taking advantage of the second amendment for my own entertainment and the slim chance I may need to defend myself.
And I think you are underestimating your enemies' you still are under the illusion that they WANT civil discourse, and in that vein you are completely misguided. You are a fool to think they even WANT civil discourse. They are counting on you to divide and conquer and you are the fool they are playing to
And you are part of the problem and not the solution. You THINK you can have a reasonable discourse and reach an agreement, What have they given up? NOTHING. What have you given up? What is this "in return?" Again, nothing...... When are YOU going to STOP giving up in return for nothing?
WOW.......you are more concerned about maybes and what ifs and not about what IS
WOW.......you are more concerned about maybes and what ifs and not about what IS
Aguila Blanca
Staff
This is why the NRA says the defense against tyranny doesn't play well for them. It's not that they don't believe the 2A includes a RKBA to arm the citizenry against an over-encroaching government. The problem is that an organization of the size and visibility of the NRA can't realistically stand up and acknowledge that a primary intent of the 2A was (and is) to arm the populace for a possible insurrection.heyjoe said:
Aguila Blanca
Staff
Have you read Heller ... carefully? It's a lot of pages, but most of them are what's called "dicta," which is a legalistic term for "fluff." Heller actually "held" that Dick Heller has a right to keep an operational handgun in his home for the purpose of defending himself when at home.davidsog said:
Heller didn't address a right to self defense outside of the home [it also didn't deny that such a right may exist -- it simply dodged that question]. Heller also certainly didn't address any purported right of "the People" to defend themselves against the government itself.
The Heller ruling was very narrowly focused, by design and intent. In fact, the lawsuit itself was narrowly focused, because it was planned as a first step in a long, incremental process. It is what it is -- don't read into it any more than what it is. The most important thing we gained from Heller was the Supreme Court's recognition that the RKBA is an individual right, unconnected to military service. That puts a stake through the heart of the anti-gunners' claims that the 2A applies only to militia service, and that today the National Guard is the militia. (Hint: it isn't.)
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