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Do you think the second amendment needs amended?

Do you think the second amendment needs amended?

  • Yes

    Votes: 12 18.2%
  • No

    Votes: 53 80.3%
  • Not sure

    Votes: 1 1.5%

  • Total voters
    66
  • Poll closed .
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.


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).

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.

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 . . .

Willie Orwontee said:
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.

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.


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.
 
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.:roll:
 
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.
 
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.
 
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.
 
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.

Actually I previously cited linguistic experts used by Scalia in his Heller opinion.
 
Someone may already have quoted this passage from Heller, but I'll quote it again anyway. It proves that the claim that government granted the right to keep and bear arms is false.


"t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, 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 … .” (italics in original)
 
Here is another quote from Heller:


Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. See F. Dwarris, A General Treatise on Statutes 268–269 (P. Potter ed. 1871); T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 42–45 (2d ed. 1874). “ ‘It is nothing unusual in acts … for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’ ” J. Bishop, Commentaries on Written Laws and Their Interpretation §51, p. 49 (1882) (quoting Rex v. Marks, 3 East, 157, 165 (K. B. 1802)). (emphasis added)


Notice that at least as long ago as 1802, British courts recognized that the enacting part of a law often reached beyond its preamble.

Notice also that what Chief Justice Jay was quoted as saying about the use of preambles to laws to resolve ambiguities in them is very much like what the first part of the passage above says about how a prefatory clause may sometimes have a "clarifying function." There's nothing remarkable about either statement--and neither is the least inconsistent with the second part of the passage above.
 
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.

Your argument is really not with Justice Scalia or the majority in Heller, but with black-letter principles of constitutional law. You live under a Constitution that limits the power of government over individuals, but you would rather it gave government power to limit the rights of those individuals. You resent the fact the Constitution designs the very opposite of the kind of centralized, collectivist government you seem to long for, so you just ignore the Constitution. You want to deny that's what you are doing, so you protest that you are not an enemy of the Constitution. Well, you sure could have fooled me.

You have quotes right here from Supreme Court decisions going back many years. I'm sure a lot more just like them could be found. They establish, beyond any question, that certain rights--particularly the ones guaranteed by the First, Second, and Fourth Amendments--were well recognized in law long before they were codified in the Bill of Rights. Even the way they are phrased in the Constitution bears this out. As the majority noted in Heller, "the very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed.'”

The same is true of at least one other right protected by the unamended Constitution, the right to habeas. In one of the Guantanamo decisions--Boumediene v. Bush, I think--the Court discusses how that right predates the Constitution. Again, the phrasing in the Constitution bears that out. The Suspension Clause says that "the privilege of the writ of habeas corpus shall not be suspended . . . " Why? Because habeas was already well-established as a fundamental right, here as in England, long before 1787.
 
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.

you said expert.

are these experts?

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?

 
The preamble to the Bill of Rights is NOT part of the Constitution.

so are you saying the preamble means nothing?

that is not saying the clauses of the bill of rights are not declaratory and restrictive clauses.



James Madison -"The Conventions of a number of the States having, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstructions or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the Government will best insure the beneficent ends of its institutions."Here is the most satisfactory and authentic proof that the several amendments proposed were to be considered as either declaratory or restrictive, and, whether the one or the other as corresponding with the desire expressed by a number of the States, and as extending the ground of public confidence in the Government.

Under any other construction of the amendment relating to the press, than that it declared the press to be wholly exempt from the power of Congress, the amendment could neither be said to correspond with the desire expressed by a number of the States, nor be calculated to extend the ground of public confidence in the Government. Nay, more; the construction employed to justify the Sedition Act would exhibit a phenomenon without a parallel in the political world. It would exhibit a number of respectable States, as denying, first, that any power over the press was delegated by the Constitution; as proposing, next, that an amendment to it should explicitly declare that no such power was delegated; and, finally, as concurring in an amendment actually recognising or delegating such a power.

Is, then, the Federal Government, it will be asked, destitute of every authority for restraining the licentiousness of the press, and for shielding itself against the libellous attacks which may be made on those who administer it?The Constitution alone can answer this question. If no such power be expressly delegated, and if it be not both necessary and proper to carry into execution an express power--above all, if it be expressly forbidden, by a declaratory amendment to the Constitution--the answer must be, that the Federal Government is destitute of all such authority.




We, the delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly and now met in Convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared, as well as the most mature deliberation hath enabled us, to decide thereon--DO, in the name and in behalf of the people of Virginia declare and make known that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression; and that every power not granted thereby remains with them, and at their will. That, therefore, no right of any denomination can be cancelled, abridged, restrained, or modified, by the Congress, by the Senate or House of Representatives, acting in any capacity, by the President, or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes; and that, among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States."

Here is an express and solemn declaration by the Convention of the State, that they ratified the Constitution in the sense that no right of any denomination can be cancelled, abridged, restrained, or modified, by the Government of the United States, or any part of it, except in those instances in which power is given by the Constitution; and in the sense, particularly, "that among other essential rights, the liberty of conscience and freedom of the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States."
 
you said expert.

are these experts?

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?


I'm sorry, I thought the context was clear. Now, try addressing the context I set up in my response.
 
Do you agree with these so-called "linguistic experts"?

To be brutally honest - I do not know enough about the subject of linguistics to offer a constructive and educated opinion that could effectively counter any of theirs.
 
To be brutally honest - I do not know enough about the subject of linguistics to offer a constructive and educated opinion that could effectively counter any of theirs.

OMG. Dude, please stop. Do you expect to have an ounce of credibility, or do you just accept that you don't?
 
Someone may already have quoted this passage from Heller, but I'll quote it again anyway. It proves that the claim that government granted the right to keep and bear arms is false.


"t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, 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 … .” (italics in original)


For some people, an understanding of natural rights is beyond their grasp and they will forever pathetically attempt to interpret the Constitution backwards. It's kinda funny but mostly sad.
 
Your argument is really not with Justice Scalia or the majority in Heller, but with black-letter principles of constitutional law. You live under a Constitution that limits the power of government over individuals, but you would rather it gave government power to limit the rights of those individuals.

Nope - that is not my position.

You resent the fact the Constitution designs the very opposite of the kind of centralized, collectivist government you seem to long for, so you just ignore the Constitution. You want to deny that's what you are doing, so you protest that you are not an enemy of the Constitution. Well, you sure could have fooled me.

again - not my position. No wonder you are fooled.

You have quotes right here from Supreme Court decisions going back many years. I'm sure a lot more just like them could be found. They establish, beyond any question, that certain rights--particularly the ones guaranteed by the First, Second, and Fourth Amendments--were well recognized in law long before they were codified in the Bill of Rights.

Excellent - now we are making progress. So these rights come from these laws you just referenced. Terrific. Lets see them then as opposed to some statement of faith in something nobody can prove exists.



Even the way they are phrased in the Constitution bears this out. As the majority noted in Heller, "the very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed.'”

If you are referring to those that were WELL RECOGNIZED IN LAW -what you just claimed and I quoted - we are on the same page.

The same is true of at least one other right protected by the unamended Constitution, the right to habeas. In one of the Guantanamo decisions--Boumediene v. Bush, I think--the Court discusses how that right predates the Constitution. Again, the phrasing in the Constitution bears that out. The Suspension Clause says that "the privilege of the writ of habeas corpus shall not be suspended . . . " Why? Because habeas was already well-established as a fundamental right, here as in England, long before 1787.

same response to that.
 
so are you saying the preamble means nothing?]


no more than any other suggestion for inclusion in the Constitution which failed to get ratified and included in it.
 
OMG. Dude, please stop. Do you expect to have an ounce of credibility, or do you just accept that you don't?

Why do you have a problem with honest answers to questions that you first asked?
 
Why do you have a problem with honest answers to questions that you first asked?

I have no problem with honest answers. When you give me one, I will laud you for it.
 
I have no problem with honest answers. When you give me one, I will laud you for it.

I do NOT subscribe to the internet belief that a person is qualified to comment on anything and everything and suddenly gains equal status with professionals and experts simply because they own a computer and have access to a forum.

Sorry if that bothers you.
 
I do NOT subscribe to the internet belief that a person is qualified to comment on anything and everything and suddenly gains equal status with professionals and experts simply because they own a computer and have access to a forum.

Sorry if that bothers you.

I see, then how does your opinion carry any weight whatsoever? Are you an expert on any subject? You seem to argue from a position of authority.
 
I see, then how does your opinion carry any weight whatsoever? Are you an expert on any subject? You seem to argue from a position of authority.

I pick my spots. I guess I always felt every intelligent person did.


Then I discovered internet forums.
 
I pick my spots. I guess I always felt every intelligent person did.


Then I discovered internet forums.
So you go on and on about how the 2A doesn't protect the rights of individuals, then you admit you really have no idea what you are talking about. I appreciate your candor. I'm glad we cleared that up. :)
 
So you go on and on about how the 2A doesn't protect the rights of individuals, then you admit you really have no idea what you are talking about. I appreciate your candor. I'm glad we cleared that up. :)

Why are you being intentionally dishonest and twisting and perverting what I actually said?
 
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