View Poll Results: Do you think the second amendment needs amended?

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Thread: Do you think the second amendment needs amended?

  1. #871
    Advisor Willie Orwontee's Avatar
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    Re: Do you think the second amendment needs amended?

    Quote Originally Posted by haymarket View Post
    The opinion Scalia cited in Heller cited came to the opposite conclusion. Here it is for you both from Scalia and his source

    first from Scalia in Heller

    The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” See J. Tiffany, A Treatise on Government and Constitutional Law §585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists’ Brief).

    I read both cited by Scalia as the reasons for his dividing the Amendment with those labels.

    The first source - Tiffany - says nothing about that and does not use that label or distinction.
    Well, at best that demonstrates your lack of reading comprehension.

    What is found on page 394, in Tiffany's exposition of the 2nd (Section 585), is, what Scalia quoted as a paraphrase of the 2nd Amendment (Tiffany has the two clauses reversed but the same words, in the brief, it is exactly as quoted)

    .
    The Amendment could be rephrased, "Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." See J. Tiffany, A Treatise on Government and Constitutional Law §585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists’ Brief).

    .
    Is that citation really that confusing to you? From your hyperbolic reaction to Scalia's citation one must decide whether you are an imbecile or duplicitous.

    I don't think you are an imbecile so it must be that you think we are . . . and you can get away with such deceit.


    Quote Originally Posted by haymarket View Post
    The Second was a brief submitted to the Court for Heller and contains some of the most upside down gobbledy-gook word salad parsing I have ever seen in my 65 years. I would ask anyone who thinks it provides any legal basis for the Scalia PREFATORY and OPERANT distinctions to step up toe the plate and explain what that Brief said that was so crucial in making it the platform upon which the decision sits.

    So yeah, I'm gonna do with you simply being duplicitous liar. . .

    The Brief for Professors of Linguistics and English as Amici Curiae (271KB pdf) was submitted "IN SUPPORT OF PETITIONERS" which was the District of Columbia and was NOT, "a brief submitted to the Court for Heller".

    So while I agree with you that the brief, "contains some of the most upside down gobbledy-gook word salad parsing" you have ever read, I find that admission curious coming from you since the brief is arguing for your "militia" based right position, not the individual right position.



    I think you need to reassess your beliefs of how smart you are and how dumb we are.



    .
    Last edited by Willie Orwontee; 10-16-14 at 02:07 AM.
    I already have a license to own a gun; it's called a birth certificate.

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    Re: Do you think the second amendment needs amended?

    Quote Originally Posted by haymarket View Post
    the preamble to the bill of rights is not part of the US Constitution.
    But the Court has unwaveringly endorsed the principles affirmed in that paragraph many times. Rights are claimed to be exceptions to the powers granted and those specific pronouncements in the Bill of Rights stand as a barrier to inhibit the invention of powers and thus, the mal-administration of government.

    The Court repeatedly affirms the pre-existence of rights, that government is not the source of our rights, that our rights in no manner depend on the Constitution (or any entity or structure created by the Constitution) for their existence thus the Bill of Rights only redundantly forbids government to exercise powers it was never granted, to act against our rights.

    The Court also states that the processes and operation of government can not be employed to violate those interests that are held outside of its legitimate powers (e.g., submitting them to a vote).

    Some examples (look at the dates):



    .
    "The constitution expressly declares, that the right of acquiring, possessing, and protecting property is natural, inherent, and unalienable. It is a right not ex gratia from the legislature, but ex debito from the constitution. . ." VANHORNE'S LESSEE v. DORRANCE, 2 U.S. 304 (1795)


    "The law is perfectly well settled that the first 10 amendments to the constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, . . ." -- ROBERTSON v. BALDWIN, 165 U.S. 275 (1867)


    "Men are endowed by their Creator with certain unalienable rights, and to 'secure,' not grant or create, these rights, governments are instituted." -- BUDD v. PEOPLE OF STATE OF NEW YORK, 143 U.S. 517 (1892)


    "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943).


    The first ten amendments to the Constitution, adopted as they were soon after the adoption of the Constitution, are in the nature of a bill of rights, and were adopted in order to quiet the apprehension of many, that without some such declaration of rights the government would assume, and might be held to possess, the power to trespass upon those rights of persons and property which by the Declaration of Independence were affirmed to be unalienable rights. UNITED STATES v. TWIN CITY POWER CO., 350 U.S. 222 (1956)


    "[N]either the Bill of Rights nor the laws of sovereign States create the liberty which the Due Process Clause protects. The relevant constitutional provisions are limitations on the power of the sovereign to infringe on the liberty of the citizen. . . . Of course, law is essential to the exercise and enjoyment of individual liberty in a complex society. But it is not the source of liberty,. . ." -- DENNIS C. VACCO, ATTORNEY GENERAL OF NEW YORK, et al., PETITIONERS v. TIMOTHY E. QUILL et al. No. 95-1858, (1997)


    "[I]t has always been widely understood that the Second Amendment , like the First and Fourth Amendment s, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876) , “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .” DISTRICT OF COLUMBIA v. HELLER, 478 F. 3d 370, (2008)



    What can you possibly say to argue that your conditioned, qualified, "militia right" perversion has any support in the Constitution or the Supreme Court's determinations enforcing the Constitution and its foundational principles?
    I already have a license to own a gun; it's called a birth certificate.

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    Re: Do you think the second amendment needs amended?

    Quote Originally Posted by Willie Orwontee View Post

    "Your" side is always reminding everyone that the 2nd Amendment is the only one with two clauses and Congress provided the precise terminology to employ when discussing the 2nd Amendment's two clauses -- "declaratory and restrictive clauses". Those are the descriptors I limit my characterizations to. I do not particularly like the legally ambiguous "prefatory" and "operative" terms.

    .
    My side? I gues that would include Chief Justice John Jay who discussed the Amendment in 1791 in an opinion in Jones v. Walker saying

    "A preamble cannot annul enacting clauses; but when it envinces the intention of the legislature and the design of t he act, it enables us, in cases of two constructions, to adopt the one most consonant to their intention and design."
    In fact, linguists have called the first clause an "ablative absolute" and it provides "the conditions under which the rest of the sentence is valid." That comes from "The Second Amendment: Our Latinate Constitution from the University of Texas Linguisics Research Center, December 2012.

    Lets look at what Scalia says about that from Heller.


    The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” See J. Tiffany, A Treatise on Government and Constitutional Law §585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists’ Brief).

    I read both cited by Scalia as the reasons for his dividing the Amendment with those labels.

    The first source - Tiffany - says nothing about that and does not use that label or distinction. The Second was a brief submitted to the Court for Heller and contains some of the most upside down gobbledy-gook word salad parsing I have ever seen in my 65 years.

    But let me quote from a rather clear part of that same brief Scalia cites :


    The term “bear arms” is an idiom that means to serve as a soldier, do military service, fight. To “bear arms against” means “to be engaged in hostilities with.” The word “arms” itself has an overwhelmingly military meaning, referring to weapons of offense or armor of defense. In every instance we have found where the term “bear arms” (or “bearing arms” or “bear arms against”) is employed, without any additional modifying language attached, the term unquestionably is used in its idiomatic military sense. It is only where additional language is tacked on, either to bend the idiom by specifying a particular type of fighting or to break the idiom by adding incompatible language, that the meaning of “bear arms” deviates. In the Second Amendment, the term is employed in its natural, unadorned state and, therefore, one must conclude, was used idiomatically to refer to military service.






    Interesting that the very brief cited by Scalia comes to the opposite conclusion as Heller did. Makes one wonder why Scalia referenced it all.

    That you defend any gun control law by citing the 2nd Amendment's declaratory, "militia" clause is the death-knell for your argument. It really doesn't matter if you can claim that you believe -some- laws to be unconstitutional, that you feel -any- are constitutional, by way of Congress' power to regulate the militia, is irreconcilably anti-constitutional and render any ancillary opinion invalid.
    How so? Congress established the right as part of military service in the militia and the Congress has rights over the militia. Whats the problem?

    To your second question, do you really believe that Scalia coined the prefatory / operative clause description?
    DC appealed the DC Circuit's opinion in Parker v. District of Columbia 478 F. 3d 370, (2007) . . . SCOTUS in Heller affirmed Parker and affirmed the terminology, descriptions and concepts set-out in Parker v DC:
    That year was 2007. Where were those terms... or concepts ... or terminology ... or descriptions before that time? the fact is that I am correct when I state that Heller is the end result of a right wing crusade which began over 25 years before. Parker fists quite nicely into that effort. It does not disprove my point - it underlines and supports it.

    Well, isn't that convenient?

    So really, you can just stop with that BS now . .
    So yeah, I'm gonna do with you simply being duplicitous liar. .


    Why the hostility? Did you take it personally or a direct attack by me when I said it was right wing politics which produced the Heller decision? You certainly seem to.
    Last edited by haymarket; 10-16-14 at 08:13 AM.
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    Re: Do you think the second amendment needs amended?

    Quote Originally Posted by Willie Orwontee View Post
    But the Court has unwaveringly endorsed the principles affirmed in that paragraph many times.
    My statement was that the Preamble to the Bill of Rights is NOT part of the US Constitution. Nothing you said in your post contradicts that or shows it to be not true.

    Is this the part where I now get to make smartass comments about your reading comprehension or your intelligence?

    The Court repeatedly affirms the pre-existence of rights, that government is not the source of our rights, that our rights in no manner depend on the Constitution (or any entity or structure created by the Constitution) for their existence thus the Bill of Rights only redundantly forbids government to exercise powers it was never granted, to act against our rights.
    So where do we find those pre-existing rights outside of somebody's belief system? Do you have more quotes from the Court identifying just where those pre-existingrights actually could be found?

    Rights are very simple to understand. People demand that they want a certain behavior protected by the government so they exert enough power or influence to get government to protect that behavior as a right. There is nothing complicated or mystical about that. Rights do not come from gods or giant beings floating in space dispensing them like Halloween candy to costumed trick or treaters in late October.

    So there are people who believe in things because they want to believe in them. And Courts have even quoted them and invented statements of belief on their own to boot. So what? that does not prove the existence of these rights outside of a belief system held by fellow believers because they have made a choice to believe.

    Religion exists on such a self imposed belief system. People believe in the idea of natural rights the same way - they take it on faith and believe in it because they want to believe it. And for you to provide those statements of belief about where some people willfully want to believe rights come from does not make that fact nor reality that there are natural rights. It simply says that some people believe that.

    And 500 more quotes from believers in natural rights does not prove their existence any more than the statements from ten million people prove the existence of God or gods or any other supernatural entity that cannot be proven to exist.
    Last edited by haymarket; 10-16-14 at 08:15 AM.
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    Re: Do you think the second amendment needs amended?

    Quote Originally Posted by Willie Orwontee View Post
    Brief for Professors of Linguistics and English as Amici Curiae[/URL][/B] (271KB pdf) was submitted "IN SUPPORT OF PETITIONERS" which was the District of Columbia and was NOT, "a brief submitted to the Court for Heller".
    .
    How does that change the fact that Scalia listed it as a source for himself in his opinion?
    __________________________________________________ _
    There are two novels that can change a bookish fourteen-year old's life: The Lord of the Rings and Atlas Shrugged. One is a childish fantasy that often engenders a lifelong obsession with its unbelievable heroes, leading to an emotionally stunted, socially crippled adulthood, unable to deal with the real world. The other, of course, involves orcs.... John Rogers

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    Re: Do you think the second amendment needs amended?

    Quote Originally Posted by haymarket View Post
    My side? I gues that would include Chief Justice John Jay who discussed the Amendment in 1791 in an opinion in Jones v. Walker saying
    It certainly does not include Jay. As a Federalist he certainly would never examine a provision in a bill of rights to determine the scope of an original, pre-existing, fundamental right.

    Please provide a full citation and a link to his opinion in Jones v. Walker, because you can not be trusted to provide an honest quotation or synopsis of any legal statement. What you have provided continues with that lack of honesty. You purport Jay to have said about the 2nd Amendment:



    "A preamble cannot annul enacting clauses; but when it envinces the intention of the legislature and the design of t he act, it enables us, in cases of two constructions, to adopt the one most consonant to their intention and design."


    You are the one who holds an opinion in opposition to this statement.
    You are the one who demands the declaratory clause annul the restrictive clause.
    You are the one who over read the declaratory clause which can only be said to tell us why the right is being protected (not why or how it exists).
    You are the one who takes the declaratory clause's statement about the object of the Amendment and annul the intention of the "enacting clause", the clause that actually has legal operation.
    You are the one who misapplies this instruction on when to use a preamble to interpret a provision because the preamble is only to be refered to if there is ambiguity or conflict, "in cases of two constructions", in what the restrictive clause demands the government NOT do. There is no ambiguity in the completely negative law 2nd Amendment except for that which was introduced a century after its ratification.


    Quote Originally Posted by haymarket View Post
    In fact, linguists have called the first clause an "ablative absolute" and it provides "the conditions under which the rest of the sentence is valid." That comes from "The Second Amendment: Our Latinate Constitution from the University of Texas Linguisics Research Center, December 2012.
    But the Court has said again and again that the right to arms is not granted or created or established by the 2nd Amendment thus it is not in any manner dependent upon the Constitution (or an entity or structure that IS created by the Constitution (i.e., the organized militia) for its existence. Your position is held in opposition to that foundational principle and the Court's multiple and longstanding unequivocal holdings affirming that principle and can never, ever be reconciled with it (which is why you must ignore it).

    Quote Originally Posted by haymarket View Post
    Lets look at what Scalia says about that from Heller.


    The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” See J. Tiffany, A Treatise on Government and Constitutional Law §585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists’ Brief).
    I read both cited by Scalia as the reasons for his dividing the Amendment with those labels.

    The first source - Tiffany - says nothing about that and does not use that label or distinction. The Second was a brief submitted to the Court for Heller and contains some of the most upside down gobbledy-gook word salad parsing I have ever seen in my 65 years.
    Are you having a breakdown or some other crisis in your cognition? You are wrong on how you are applying the citations; the citations only refer to the part that is in quotation marks. Scalia's statement that, The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” is what is represented in the cited works.

    Additionally, I'm in shock that you repeat your error stating that the Brief for Professors of Linguistics and English was filed in support of Heller -- IT WAS FILED IN SUPPORT OF DC-- thus the "upside down gobbledy-gook word salad parsing" is arguing your side of the issue.

    Quote Originally Posted by haymarket View Post
    But let me quote from a rather clear part of that same brief Scalia cites :

    Interesting that the very brief cited by Scalia comes to the opposite conclusion as Heller did. Makes one wonder why Scalia referenced it all.
    Well, again, the citation is to page 3 of the brief and on page 3 we find the Professors stating that, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” Scalia does not quote or draw from any other part of the Professor's brief which isn't surprising because it argues a theory thoroughly rejected by the Court . . .

    Quote Originally Posted by haymarket View Post

    Quote Originally Posted by Willie Orwontee
    That you defend any gun control law by citing the 2nd Amendment's declaratory, "militia" clause is the death-knell for your argument. It really doesn't matter if you can claim that you believe -some- laws to be unconstitutional, that you feel -any- are constitutional, by way of Congress' power to regulate the militia, is irreconcilably anti-constitutional and render any ancillary opinion invalid.
    How so? Congress established the right as part of military service in the militia and the Congress has rights over the militia. Whats the problem?
    And that you would rebut my statement by saying "Congress established the right" is just hilarious.

    Quote Originally Posted by haymarket View Post
    That year was 2007. Where were those terms... or concepts ... or terminology ... or descriptions before that time?
    Well, going by what the lower court says in Parker, I'm going to say that the "prefatory" / "operative" terminology has its origin in the District of Columbia's arguments:

    22. The District of Columbia argues that the prefatory clause declares the Amendment's only purpose—to shield the state militias from federal encroachment—and that the operative clause, even when read in isolation, speaks solely to military affairs and guarantees a civic, rather than an individual, right.


    So again, please stop with the incorrect statement that the "prefatory" / "operative" terminology is something Scalia introduced to the world in Heller . . . It came from your side.


    Quote Originally Posted by haymarket View Post
    Why the hostility? Did you take it personally or a direct attack by me when I said it was right wing politics which produced the Heller decision? You certainly seem to.
    I just find your lies and misrepresentations and continuous repeating of defunct theories, reprehensible and intolerable. You are an enemy of the Constituion and as such my verbal hostility should be expected and considered the minimum level of resistance to your anti-constitutional positions.
    I already have a license to own a gun; it's called a birth certificate.

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    Re: Do you think the second amendment needs amended?

    Quote Originally Posted by Willie Orwontee View Post
    It certainly does not include Jay. As a Federalist he certainly would never examine a provision in a bill of rights to determine the scope of an original, pre-existing, fundamental right.

    Please provide a full citation and a link to his opinion in Jones v. Walker, because you can not be trusted to provide an honest quotation or synopsis of any legal statement. What you have provided continues with that lack of honesty.
    sure thing Willie. Jones v. Walker, 13, F. Cas. 1059, 1065 (C.C.D. Va. n. d.) (no. 7507) , reprinted in Maeva Marcus, THE DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES 1789 - 1800. New York Columbia University Press, 2004. page 301.

    It is further cited with footnotes in THE SECOND AMENDMENT - A Biography by Michael Waldman - Simon & Schuster 2014. page 62.

    So again, please stop with the incorrect statement that the "prefatory" / "operative" terminology is something Scalia introduced to the world in Heller .
    Q. What Supreme Court decision or federal law used it before Scalia in Heller?
    A. None that I know of and none that you have cited.

    You are the one who holds an opinion in opposition to this statement.
    You are the one who demands the declaratory clause annul the restrictive clause.
    You are the one who over read the declaratory clause which can only be said to tell us why the right is being protected (not why or how it exists).
    You are the one who takes the declaratory clause's statement about the object of the Amendment and annul the intention of the "enacting clause", the clause that actually has legal operation.
    You are the one who misapplies this instruction on when to use a preamble to interpret a provision because the preamble is only to be refered to if there is ambiguity or conflict, "in cases of two constructions", in what the restrictive clause demands the government NOT do. There is no ambiguity in the completely negative law 2nd Amendment except for that which was introduced a century after its ratification.
    Not exactly. I am the one who simply says that one cannot dismiss the first half of the Amendment as Scalia does and place the emphasis on the second half .

    Isn't it interesting that there is only one single amendment in the bill of rights which gives us the reason for creating that right and it is the Second? None of the others do that. But yet we are suppose to dismiss it as the NRA does with half of the Amendment on their lobby wall or as Scalia does. Sorry - I respect ALL of it.

    And that you would rebut my statement by saying "Congress established the right" is just hilarious.
    Because you believe that our rights were handed out by gods in the sky like Halloween candy at the end of October. So you find reality "hilarious"? Got it.

    But the Court has said again and again that the right to arms is not granted or created or established by the 2nd Amendment thus it is not in any manner dependent upon the Constitution (or an entity or structure that IS created by the Constitution (i.e., the organized militia) for its existence.
    Yes - statements of your fellow believers because they want to believe what they have chosen to believe because they believe it. So where did this pre-existingrights exist then? Where did they come from?

    You cannot answer that and still cling to your beliefs as anything but beliefs.

    I just find your lies and misrepresentations and continuous repeating of defunct theories, reprehensible and intolerable. You are an enemy of the Constituion and as such my verbal hostility should be expected and considered the minimum level of resistance to your anti-constitutional positions.
    Oh my!!!! An enemy of the Constitution no less!!!! I guess in your world this is not simply a honest disagreement over different interpretations? Nah - I must be a ENEMY OF THE CONSTITUTION because one justice made the difference in a 5 to 4 decision which turned upside down two centuries of precedent. Got it.
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    Re: Do you think the second amendment needs amended?

    Quote Originally Posted by ernst barkmann View Post
    experts?

    so because a man grew wheat to feed to his cattle...the court, interprets that to mean the government can regulate commence inside states?

    because wild birds fly between bodies of water in different states, this allows government to make environmental laws?


    no where is it written in the constitution for the federal government to have authority in the life's liberty and property of the people....no where is that written.

    the court is corrupt, as is the other branches.
    Please, are you suggesting no one knows more than you? That people don't study law and the Constitution? So, again, our systems calls on the courts to interpret and not novice lay people.

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    Re: Do you think the second amendment needs amended?

    Quote Originally Posted by TurtleDude View Post
    so are you arguing what FDR did was proper or are you arguing he should have sought a constitutional amendment
    I'm not sure I'm arguing either. What I am arguing is that we have the courts for this. And if they rule he could, he could.

    AUSTAN GOOLSBEE: I think the world vests too much power, certainly in the president, probably in Washington in general for its influence on the economy, because most all of the economy has nothing to do with the government.

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    Re: Do you think the second amendment needs amended?

    Quote Originally Posted by haymarket View Post
    In fact, linguists have called the first clause an "ablative absolute" and it provides "the conditions under which the rest of the sentence is valid." That comes from "The Second Amendment: Our Latinate Constitution from the University of Texas Linguisics Research Center, December 2012.
    More evidence of your proclivity for citing "experts" which agree with your position, while dismissing those who don't. You didn't even attempt to refute the expert opinion I posted the other day. Very telling indeed.

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