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Thread: Justices extend gun owner rights nationwide

  1. #311
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    Re: Justices extend gun owner rights nationwide

    Not careful enough

    The people's right to have their own arms for their defense is described in the philosophical and political writings of Aristotle, Cicero, John Locke, Machiavelli, the English Whigs and others.[109] The concept of a universal militia originated in Roman times, where every citizen was a soldier and every soldier was a citizen.[110][111] Though possessing arms appears to be distinct from "bearing" them, the possession of arms is recognized as necessary for and a logical precursor to the bearing of arms.[112]

    The Oxford English Dictionary (OED) defines the phrase To bear arms as "to serve as a soldier, do military service, fight." The OED dates this use to 1795.[113][114]Garry Wills, an author and history professor at Northwestern University, writes of the origin of the term bear arms:

    By legal and other channels, the Latin "arma ferre" entered deeply into the European language of war. Bearing arms is such a synonym for waging war that Shakespeare can call a just war " 'justborne arms" and a civil war "self-borne arms." Even outside the special phrase "bear arms," much of the noun's use echoes Latin phrases: to be under arms (sub armis), the call to arms (ad arma), to follow arms (arma sequi), to take arms (arma capere), to lay down arms (arma pœnere). "Arms" is a profession that one brother chooses the way another choose law or the church. An issue undergoes the arbitrament of arms." ... "One does not bear arms against a rabbit...[115]

    Garry Wills also cites Greek and Latin etymology:

    ... "Bear Arms" refers to military service, which is why the plural is used (based on Greek 'hopla pherein' and Latin 'arma ferre') – one does not bear arm, or bear an arm. The word means, etymologically, 'equipment' (from the root ar-* in verbs like 'ararisko', to fit out). It refers to the 'equipage' of war. Thus 'bear arms' can be used of naval as well as artillery warfare, since the "profession of arms" refers to all military callings.[115]

    Don Kates, a civil liberties lawyer, cites historic English usage attributed to Tench Coxe describing the "right to keep and bear their private arms."[116]

    Per Sayoko Blodgett-Ford, both military and nonmilitary usages of the phrase exist in the Pennsylvania "minority report" published after the ratifying convention

    That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers."[117]

    Historian Jack Rakove, in an amicus brief signed by a dozen leading historians filed in District of Columbia. v. Heller,[118] identifies several problems with the Kates and Blodgett-Ford arguments. Coxe's reference describes the ownership of weapons, not the purpose for which the weapons were owned. Thus, privately owned weapons were state-mandated as a means of meeting one's legal obligation to contribute to public defense. This amicus brief however, observes that Pennsylvania, because of Quaker influence, refused to pass laws organizing a militia for two decades prior to the Revolution, and refused to organize a militia even during wartime when frontier counties petitioned the colonial government.[119] How the right to arms is based on membership in the militia, when there is no militia, is unexplained. Other historians note that the Second Amendment describes what was as much a civic obligation as it was a right in the modern sense.[120] The meaning of the Pennsylvania dissent of the minority is even more hotly disputed. Historians note that this text, written by the Anti-Federalist minority of a single state, was hastily written, never actually reached the floor of the convention, and was never emulated by any other ratification convention.[120][121][122][48] In 1982, on the other hand, a Republican-majority U.S. Senate subcommittee claimed the Pennsylvania minority report as a source for the Bill of Rights,[123] while the majority opinion in Heller referred to this report as being "highly influential".[124]

    Richard Uviller and William G. Merkel argue that prior to and through the 18th century, the expression "bear arms" appeared primarily in military contexts, as opposed to the use of firearms by civilians.[25][62][125][24] According to Uviller and Merkel:

    In late-eighteenth-century parlance, bearing arms was a term of art with an obvious military and legal connotation. ... As a review of the Library of Congress's data base of congressional proceedings in the revolutionary and early national periods reveals, the thirty uses of 'bear arms' and 'bearing arms' in bills, statutes, and debates of the Continental, Confederation, and United States' Congresses between 1774 and 1821 invariably occur in a context exclusively focused on the army or the militia.[125]

    Clayton Cramer and Joseph Olson question Uviller and Merkel's conclusion, arguing that while previous scholarly examination of the phrase "bear arms" in English language documents published around the time of the Constitution does show almost entirely military uses or contexts, this may reflect a selection bias arising from the use of a limited selection of government documents that overwhelmingly refer to matters of military service.[126] According to Cramer and Olson:

    Searching more comprehensive collections of English language works published before 1820 shows that there are a number of uses that...have nothing to do with military service...[and] The common law was in agreement. Edward Christian's edition of Blackstone's Commentaries that appeared in the 1790's described the rights of Englishmen (which every American colonist had been promised) in these terms 'everyone is at liberty to keep or carry a gun, if he does not use it for the [unlawful] destruction of game.' This right was separate from militia duties.[126]

    Mark Tushnet claims that "bear arms," when used separately from "keep" in the late-eighteenth century, could refer to hunting or other activities. However, when used together, they specifically refer to weapons in connection with military use.

    When used separately in the eighteenth century, 'keep' and 'bear' had their ordinary meanings -you could keep a weapon in your house, and then you'd bear it outside. When used together, though, the meaning is more restricted. The evidence is overwhelming that 'keep and bear' was a technical phrase whose terms traveled together, like 'cease and desist' or 'hue and cry.' 'Keep and bear' referred to weapons in connection with military uses, even when the terms used separately might refer to hunting or other activities.[127]

    Legal commentator and author Patrick J. Charles analyzed "keep arms" and "bear arms" in eighteenth century statutes and military treatises and concludes that both phrases were legal terms of art used to describe arms in a military context.[128]
    Second Amendment to the United States Constitution - Wikipedia, the free encyclopedia

    So everything from the philosophy for why we have the right to keep and bear arms through the etymology of the words use refer to bear arms as a verb which includes the functional use of the arms. So again, you're wrong.
    You know the time is right to take control, we gotta take offense against the status quo

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    Re: Justices extend gun owner rights nationwide

    Quote Originally Posted by Ikari View Post
    Not careful enough
    Nor is the consideration of the implication.

    If CC is right, then the 2nd amendment is meaningless, as the government could effectinly eliminate the right to arms by eliminating any legal use of those arms. This is completely counter to the intent of the amendment, and thus, absurd on its face.

    The USE of the firearm is a fundamental part of the right to arms, as a weapon that cannot be used is, well, useless.

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    Re: Justices extend gun owner rights nationwide

    Quote Originally Posted by Goobieman View Post
    Nor is the consideration of the implication.

    If CC is right, then the 2nd amendment is meaningless, as the government could effectinly eliminate the right to arms by eliminating any legal use of those arms. This is completely counter to the intent of the amendment, and thus, absurd on its face.

    The USE of the firearm is a fundamental part of the right to arms, as a weapon that cannot be used is, well, useless.
    Exactly. But some people who are opposed to the exercise of certain rights will try their best to play semantics games to get around the functional form of the right itself. It's absurd to propose that it's ok to heavily regulate the use of weapons when the People have the right to keep and bear arms. Furthermore, the overwhelming intent is so that the People have the proper tools by which they can fight foriegn or domestic threats against their liberty and freedom. To bear is a verb which includes, by the definitions of the time, to fight.
    You know the time is right to take control, we gotta take offense against the status quo

    Quote Originally Posted by A. de Tocqueville
    "I should have loved freedom, I believe, at all times, but in the time in which we live I am ready to worship it."

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    Re: Justices extend gun owner rights nationwide

    Quote Originally Posted by Ikari View Post
    So everything from the philosophy for why we have the right to keep and bear arms through the etymology of the words use refer to bear arms as a verb which includes the functional use of the arms. So again, you're wrong.
    Maybe I'm misunderstanding what you're saying here, but the very quotation you use above seems to go against this point:

    Mark Tushnet claims that "bear arms," when used separately from "keep" in the late-eighteenth century, could refer to hunting or other activities. However, when used together, they specifically refer to weapons in connection with military use.
    What kind of military use? The militia. Therefore the amendment doesn't protect other uses. Which is just bolstered by the next paragraph you quote:

    When used separately in the eighteenth century, 'keep' and 'bear' had their ordinary meanings -you could keep a weapon in your house, and then you'd bear it outside. When used together, though, the meaning is more restricted. The evidence is overwhelming that 'keep and bear' was a technical phrase whose terms traveled together, like 'cease and desist' or 'hue and cry.' 'Keep and bear' referred to weapons in connection with military uses, even when the terms used separately might refer to hunting or other activities.[127]

    Legal commentator and author Patrick J. Charles analyzed "keep arms" and "bear arms" in eighteenth century statutes and military treatises and concludes that both phrases were legal terms of art used to describe arms in a military context.[128]
    This does not support the conclusion "we have the right to keep and bear arms through the etymology of the words use refer to bear arms as a verb which includes the functional use of the arms." It instead places a necessary limitation on the functionality of the weapons which the second amendment protects, namely militia service. This conclusion seems at odds with your personal argument. Did I interpret you wrong?
    Last edited by Guy Incognito; 07-01-10 at 04:34 PM.

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    Re: Justices extend gun owner rights nationwide

    Quote Originally Posted by Guy Incognito View Post
    Maybe I'm missing understanding what you're saying here, but the very quotation you use above seems to go against this point:
    Still waiting for you to supply the quotes that show the people that wrote and ratified the 2nd intended to protect the exercise of the collective right of self-defense to the absolute exclusion of the individual right to same.

    You've had 2 days and thus far supplied nothing to support your claim to that effect.

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    Re: Justices extend gun owner rights nationwide

    Quote Originally Posted by Guy Incognito View Post
    Did I interpret you wrong?
    Yes you did. As later SCOTUS rulings have clarified to second amendment to apply to things such as hunting and private arms and as an individualistic right. The argument wasn't about that, but rather over the meaning of "to bear arms". And that is what I posted about. The term "to bear arms" is a verb which includes the functional use of arms.
    You know the time is right to take control, we gotta take offense against the status quo

    Quote Originally Posted by A. de Tocqueville
    "I should have loved freedom, I believe, at all times, but in the time in which we live I am ready to worship it."

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    Re: Justices extend gun owner rights nationwide

    Quote Originally Posted by Ikari View Post
    Yes you did. As later SCOTUS rulings have clarified to second amendment to apply to things such as hunting and private arms and as an individualistic right. The argument wasn't about that, but rather over the meaning of "to bear arms". And that is what I posted about. The term "to bear arms" is a verb which includes the functional use of arms.
    Oh ok, my apologies. My head is still stuck on originalism. That quote you provided really does help to bolster my argument though, so thanks!

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    Re: Justices extend gun owner rights nationwide

    Quote Originally Posted by Guy Incognito View Post
    Oh ok, my apologies. My head is still stuck on originalism. That quote you provided really does help to bolster my argument though, so thanks!
    It would have if the SCOTUS had not already ruled it to be an individual right separate from military duty.
    You know the time is right to take control, we gotta take offense against the status quo

    Quote Originally Posted by A. de Tocqueville
    "I should have loved freedom, I believe, at all times, but in the time in which we live I am ready to worship it."

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    Re: Justices extend gun owner rights nationwide

    Quote Originally Posted by Ikari View Post
    It would have if the SCOTUS had not already ruled it to be an individual right separate from military duty.
    Now I think you're misunderstanding me, I didn't mean that as a jibe or anything. My argument is something separate and distinct from yours, about the original meaning of the 2nd. I do not dispute that the meaning of the amendment has broadened over time, just like the first amendment.

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    Re: Justices extend gun owner rights nationwide

    Quote Originally Posted by Goobieman View Post
    This is absurd, on its face and beyond belief.
    Not at all. It is reading the 2nd Amendment and taking it completely literally. No my fault if you want to interpret it. Never knew you were such a developmentalist when it came to the Constitution, Goobie.
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