The Unlimited Right to Bear Arms

[Skans]

Nope, that's not how it works. In the Constitution the Founding Fathers assigned the judicial power of the United States to the federal courts, including the authority to exercise that judicial power to decide, among other things, cases arising under the Constitution

Frank, read what I said again, and I think you will realize that I acknowledged the Supreme Court has the final say, when I said they "blessed it" (i.e. the NFA in one manner or another. I don't have to agree that the Supreme Court's decision was a good one or that the justices correctly interpreted the 2nd Amendment.

As to the guy who said my belief is unsupported. Yeah, that's why its a belief, not a fact. Facts can be unsupported, beliefs are just beliefs. Many folks believe that the Roe v. Wade decision was wrong. Forty years later millions of people continue to band together to fight against that decision. Do not belittle people for expressing beliefs and opinions that are contrary to Supreme Court decisions.

 

[OldMarksman]

Posted by Skans: As to the guy who said my belief is unsupported. Yeah, that's why its a belief, not a fact. Facts can be unsupported, beliefs are just beliefs.

Without substantiation by some kind of evidence, beliefs, contentions, and opinions have little value, and none at all in terms of advancing an argument.

Do not belittle people for expressing beliefs and opinions that are contrary to Supreme Court decisions.

One should not belittle people for any reason.

However, beliefs and opinions about the meaning of the law are only definitive when they have been decided upon as matters of law, though they can be quite useful, if properly presented, reasoned, and adequately supported, for the purpose of advancing a judicial argument, in the appropriate venue.

That the right to bear arms constitutes an individual right that is not limited by matters relating to a well regulated militia was established at the Federal level by District of Columbia v Heller.

That that right is subject to some regulation was affirmed in the same decision on the basis of state and Federal precedent.

That the right is not limited to Federal law but extends to state and local legislation was established in Chicago v McDonald, under the Fourteenth Amendment.

These were not slam-dunk decisions, at 5:4.

It's quite okay to opine that these things should not be true, but to state that the law means something else is not helpful.

Put another way, what the law says is what the Court says it says, whehter we like it or not.

 

[Skans]

....if properly presented, reasoned, and adequately supported, for the purpose of advancing a judicial argument, in the appropriate venue.

I am not advancing a judicial argument. Look around, the "venue" is an internet forum - opinions that do not advance a judicial argument are perfectly valid here.

My original post on this subject merely discussed the meaning of "infringement" as it is expressed in the 2nd Amendment. The courts change the meaning of the Constitution all the time - please take it as a given that I already know this. The courts have been known to make law out of thin air, or at least out of twisted and contorted reasoning. When is a fine not a fine? When its a tax, even though the law and its drafters say it is a fine.....just because the Court says so. Yeah, I get it - governments get shut down because the Supreme Court renders contorted decisions. Bad law is still bad law, regardless of whether girls and boys in black robes say otherwise.

 

[OldMarksman]

Posted by Skans: I am not advancing a judicial argument. Look around, the "venue" is an internet forum - opinions that do not advance a judicial argument are perfectly valid here.

Of course, but opinions that are inconsistent with objective facts are invalid, by definition.

My original post on this subject merely discussed the meaning of "infringement" as it is expressed in the 2nd Amendment.

Fair enough.

But you went on to say "the Federal Government has been unlawfully encroaching on the rights granted under the 2nd Amendment ever since the National Firearms Act of 1934". Others get to decide that. One might say "it would seem to me, without having read the decision that upheld the National Firearms Act of 1934 or any other precedent, that the Act encroaches on the Second Amendment". But it was authoritatively decided that it did not.

Keep in mind that when that decision was rendered, it had not been fully established that the right to keep and bear arms was in fact an individual, rather than a collective, right. Nor is that stated explicitly in the Constitution. You have to get past that hurdle before starting to discuss what constitutes infringement.

You said

The Federal gun laws are in conflict with the Constitution.

How about "the Federal gun laws are in conflict with how I believe the Constitution should be interpreted."?

You also said

On the other hand, I don't believe that the 2nd Amendment protects people from State laws that limit or restrict gun ownership.

Perhaps you do not believe that the Second Amendment should protect people from State laws that limit or restrict gun ownership, but it has been decided that, by virtue of the Fourteenth Amendment, it does.

Bad law is still bad law, regardless of whether girls and boys in black robes say otherwise.

The courts do not decide whether a law is good or bad, nor can they negate a law on that basis. That's the province of the legislative branch. The courts can only decide whether a law conflicts with a higher law.

 

[Skans]

I accept and agree with a number of comments you make in your last post. about the only thing I disagree with is your statement: The courts can only decide whether a law conflicts with a higher law.

I believe (as well as many others) that the Supreme Court has gone far beyond these boundaries in a number of cases, to the extent that it has actually made new law. Judicial activism exists - it is not something I made up for purposes of this debate.

 

[OldMarksman]

Posted by Skans: I believe (as well as many others) that the Supreme Court has gone far beyond these boundaries in a number of cases, to the extent that it has actually made new law. Judicial activism exists - it is not something I made up for purposes of this debate.

I cannot disagree.

One could be charitable and say that what some of us call "judicial activism" is done within the Constitution, which is the highest law of the land, and is permitted because come provisions of the Constitution are vague, but the debate rages, nonetheless.

 

[Aguila Blanca]

The process is illustrated by following the path from Cruikshank to Miller to Emerson to Heller to McDonald. And the legal reality was that each step along that path was supported by solid and principled legal and historical argument -- not simple belief.

So, Frank, are you saying that the Founders did NOT intend for the Second Amendment to be a blanket prohibition on laws restricting or regulating ownership and carrying of "arms"? If that's your position, how you you explain away the fact that, where the Founders intended to allow for "reasonable" restrictions on a constitutional right -- as in the Fourth Amendment -- they said so.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, ..."

But they conspicuously did NOT say in the Second Amendment that, "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 unreasonably infringed."

I think we all (or most of us, anyway) fully understand that we have to live under the law as interpreted by the Supreme Court. That does NOT mean we have to unquestioningly accept every decision they make, but that certainly sounds like what you are telling us. Before Heller, would you have told us that Miller was a correct interpretation of the Second Amendment? If so, then you must believe that Heller was wrong. If not, then you obviously acknowledge that the SCOTUS is not infallible.

 

[Tom Servo]

So, Frank, are you saying that the Founders did NOT intend for the Second Amendment to be a blanket prohibition on laws restricting or regulating ownership and carrying of "arms"?

Nobody's going to love me for this, but I'm not sure. There have been restrictions on the manner in which arms can be carried or borne in various state constitutions since the founding era.

In fact, it really wasn't until the Reconstruction period that anyone found restrictions on the 2A to be repugnant.

 

[OldMarksman]

Posted by Aquila Blanca: I think we all (or most of us, anyway) fully understand that we have to live under the law as interpreted by the Supreme Court. That does NOT mean we have to unquestioningly accept every decision they make, but that certainly sounds like what you are telling us. Before Heller, would you have told us that Miller was a correct interpretation of the Second Amendment? If so, then you must believe that Heller was wrong. If not, then you obviously acknowledge that the SCOTUS is not infallible.

It doesn't matter. It is what it is.

No one is saying that anyone has to " unquestioningly accept " anything, just that we must accept it.

Does the Second Amendment guarantee an individual right? After Heller, yes, but four out of nine Justices have held otherwise.

 

[Frank Ettin]

So, Frank, are you saying that the Founders did NOT intend for the Second Amendment to be a blanket prohibition on laws restricting or regulating ownership and carrying of "arms"?...

We tend to speak about the "intent of the Founders" as if they all agreed. But it's hard to believe that they all did agree. Fifty-five delegates attended the Constitutional Convention in 1786-87. Thirty-nine signed the proposed Constitution. Thirteen left without signing, and three refused to sign.

There was then a bitter fight over ratification by the States. And it indeed looked like the Constitution would fail ratification until the Massachusetts Compromise was hashed out -- giving us the Bill of Rights after the Constitution was ratified without the Bill of Rights.

And while the Founders aren't here to fully explain the depth and breadth of their intentions and expectations, from the Constitution, we can infer that they intended us to have, among other things:

• A system of checks and balances achieved through a separation of powers among the Congress (legislative), the President (executive) and the Courts (judicial);
  
  
• Of these three branches of government, the legislative was most directly subject to the influence of the body politic, and the judicial was the least subject to the direct influence of the body politic;
  
  
• Judicial power vested in a Supreme Court and such inferior courts as Congress might establish, and this judicial power would extend to all cases arising under, among other things, the Constitution and the laws of the United States;
  
  
• A Constitution that could be changed, albeit with difficulty.

....I think we all (or most of us, anyway) fully understand that we have to live under the law as interpreted by the Supreme Court. That does NOT mean we have to unquestioningly accept every decision they make, but that certainly sounds like what you are telling us. Before Heller, would you have told us that Miller was a correct interpretation of the Second Amendment?...

What I'm really saying is that we need to better understand the process. We didn't get the favorable result in Heller by arguing "what part of 'not be infringed' don't you understand."

...There have been restrictions on the manner in which arms can be carried or borne in various state constitutions since the founding era...

There have also been accepted and/or judicially upheld "infringements" of the RKBA since the birth of our Republic. If anyone is interested in learning more about early gun control, I recommend Gunfight: The Battle over the Right to Bear Arms in America (Adam Winkler, W. W. Norton & Company, 2011).

 

[44 AMP]

are you saying that the Founders did NOT intend for the Second Amendment to be a blanket prohibition on laws restricting or regulating ownership and carrying of "arms"?...

I believe that the Founders did intend for the Second Amendment to be a blanket prohibition on the Federal Government passing laws restricting or regulating ownership and carrying of "arms".

Such laws, were the province of the individual states, and determination of what laws about arms were necessary was not the business of the Federal Govt.
'
Also remember that the system the Founders gave us had a congress where the House represented the people, and the Senate represented the States.

A number of things have changed in our govt, since then. And not all for the better...

 

[FoghornLeghorn]

Such laws, were the province of the individual states

This is a hugely complicated issue in that it could be interpreted that the individual state's laws could trump the Constitution.

I have to disagree. Our founding fathers intended the Constitution to apply, regardless.

Otherwise, the state of Chaos could demand all residents adhere to the Moonbeam religion, no other religions allowed.

Our founding fathers intended that all American citizens have access to own and bear the same weapons as our military.

At least, in their day, anyway.

 

[Frank Ettin]

...I have to disagree. Our founding fathers intended the Constitution to apply, regardless.

Otherwise, the state of Chaos could demand all residents adhere to the Moonbeam religion, no other religions allowed.

Our founding fathers intended that all American citizens have access to own and bear the same weapons as our military...

On exactly what do you base that belief, especially since the Supreme Court ruled in 1833 that the Bill of Rights did not apply to the States?

 

[Brian Pfleuger]

As I've said so many times before, if the COTUS was intended to apply to the states:

1)Why would the states need their own constitutions?

2)Why would it not have immediately been applied to the states, for example as many of them had official state religions.

3)Why would the SCOTUS have found, easily in the lifetimes of folks who were there and well within the memory of the founding of the nation, that the BoR did NOT apply to the states?

 

[Dashunde]

Our founding fathers intended that all American citizens have access to own and bear the same weapons as our military.

State and Federal understandings aside... They had NO way of knowing what kind of firepower we would create in the 21'st century, if they had I do certainly believe they would have written 2A very differently, but I think the basic premise of being armed to facilitate personal protection from criminals and tyranny would have ended up the same.
Taken to its outer edge, we cant have a wealthy guy possessing any weaponry he can afford.. F22's, tanks, Apache's, etc... that’s simply a warlord in the making, nevermind the risk of those items ending up in North Korea or similar.

I suspect a crystal ball 2A would have provided us the right to have and carry small arms at-will for personal protection and would put our Reserve & National Guard forces purely under the organized control of individual States while still being Federally funded and supplied with like/kind/quality hardware. After all, it is OUR money, ALL of it, State and Federal.
Essentially, the Federal government would be forced to provide We The People with the means and training to repel an out-of-control Uncle Sam, or... to assist Uncle Sam around the world as needed.

 

[Aguila Blanca]

We tend to speak about the "intent of the Founders" as if they all agreed. But it's hard to believe that they all did agree.

It doesn't matter if they all agreed. What matters is what they enacted, and what it meant to them when they enacted it.

It's common, as I'm sure you know, for judges to issue rulings that include reference to and/or discussion of the "intent of the legislature" in enacting a law. It's highly unlikely that any law was ever passed unanimously, but a law enacted by even the slimmest of majorities is nonetheless a law, and whatever that law intends to accomplish is the "intent of the legislature" (acting as a body).

The Founders did enact a Bill of Rights, so it is not improper or inappropriate to discuss what the original intent of any of the ten amendments contained therein was. There are lots of contemporaneous writings to provide guidance in this, including (but not limited to) the Federalist Papers and the Anti-Federalist Papers.

 

[Frank Ettin]

It doesn't matter if they all agreed. What matters is what they enacted, and what it meant to them when they enacted it...

Actually the Foundering Fathers didn't "enact" anything. They proposed, and the States/Commonwealths ratified it.

...It's common, as I'm sure you know, for judges to issue rulings that include reference to and/or discussion of the "intent of the legislature" in enacting a law....

Yes, and with regard to the Bill of Rights, the Supreme Court concluded that it did not apply to the States.

 

[Aguila Blanca]

Yes, and with regard to the Bill of Rights, the Supreme Court concluded that it did not apply to the States.

And, since then, the Supreme Court has decided ... one by one ... that many of the amendments in the Bill of Rights DO apply to the states. The most recent, of course, is the 2nd Amendment, courtesy of the McDonald decision.

And, of course, in the unfortunate Miller decision the Supreme Court decision hinged to a large degree on their (erroneous) perception that short-barreled shotguns had no military application -- thus tacitly, if not explicitly, reinforcing a nexus between the 2A and military or militia service. Then along came Heller and, not only was the 2A ruled to be an individual right, the decision more or less discounted any military/militia connection entirely.

Which brings us back to: We are supposed to live according to the law as the Supreme Court interprets it, but that's certainly no reason to accept their decisions as infallibly correct.

It's all somewhat nebulous, and it doesn't help that "the highest law of the land" is actually "what five out on nine people in black robes agree on today."

 

[Frank Ettin]

And, since then, the Supreme Court has decided ... one by one ... that many of the amendments in the Bill of Rights DO apply to the states....

But only through the mechanism of the 14th Amendment adopted in 1868 -- long after the Founding Fathers.

 

[44 AMP]

their (erroneous) perception that short-barreled shotguns had no military application

One current urban legend holds that the court ruled correctly in Miller..
supposedly they said something like "as the court has been presented no evidence that the short barrel shotgun is a militia weapon.."

some say they were referring to the specific gun in the case, and the administration just ran with it to include all short shotguns..

Others say that while such evidence of milita utility does exist, since it wasn't provided to the court, the ruling was just.

Personally, I cannot see how any intellectually honest individual could doubt the "militia utility" of a short barreled arm of any kind, particularly a shotgun, considering the German WW I protest about how horrible a weapon of war the trench shotgun was.

That being the case, I believe that the court ducked the issue and wordsmithed their way to a decision.